June 7, 2019

The U.S. District Court in Rapid City will hear a case on Wednesday challenging three South Dakota laws, including the newly-enacted “Riot Boosting” Act, that threaten activists who encourage or organize protests – particularly protests of the Keystone XL pipeline – with fines, civil liabilities, and/or criminal penalties of up to 25 years in prison.

In the case, Dakota Rural Action v. Noem, the American Civil Liberties Union and the ACLU of South Dakota represent four organizations: Dakota Rural Action, Indigenous Environmental Network, NDN Collective and the Sierra Club; and two individuals: Nick Tilsen with NDN Collective and Dallas Goldtooth with Indigenous Environmental Network. All are planning to protest the Keystone XL pipeline and/or encourage others to do so. The hearing will take place at 3 p.m., June 12, at the Andrew W. Bogue Federal Building and U.S. Courthouse, Room 301, 515 Ninth St., Rapid City.              

Because the challenged laws expose the plaintiffs to immediate and irreparable harm, the plaintiffs are asking the court to block the state from enforcing the anti-protest laws as the case goes forward. The case asserts that the laws violate the First and Fourteenth Amendments to the Constitution by chilling protected speech and failing to adequately describe what speech or conduct could subject protesters and organizations to criminal and civil penalties.

“By equating peaceful organization and support of protest with ‘riot boosting’ and incitement to riot, the plaintiffs’ ability to speak out against the Keystone XL Pipeline is stifled,” said Courtney Bowie, ACLU of South Dakota legal director. “No one should have to fear the government coming after them for exercising their First Amendment rights. We hope the court will recognize this effort to undermine South Dakotans’ right to peaceful assembly and free speech for what it is and reject these dangerous laws.”

The Riot Boosting Act, which became law this in March, gives the state the authority to sue any individual or organization for “riot-boosting,” or encouraging a protest where acts of violence occur. The law mirrors two existing state laws that criminalize similar speech. Under the laws, individuals and organizations — regardless of their intent to incite violence, the likelihood that their speech or conduct would result in violence, or the imminence of the intended violence —could be subject to civil and/or criminal penalties.  Moreover, the laws do not clearly describe what conduct or speech is considered “riot-boosting” or “encouraging” a riot. The ACLU argues that such vague and broad language invites arbitrary enforcement, will chill protected speech, and will result in indiscriminate targeting of peaceful organizers.

“This is a blatantly unconstitutional attempt to suppress protests of the Keystone XL pipeline before they even begin,” said Dallas Goldtooth with the Indigenous Environmental Network. “Indigenous voices have long protected Mother Earth’s biodiversity and we will not be silenced. We refuse to live in fear for demanding climate justice and protecting our sovereignty as Native nations and its peoples. We’re happy that our views will be heard in court.”

During Wednesday’s hearing, Judge Lawrence L. Piersol also will consider three motions from the defendants: their motion for judgement on the pleadings, their motion to certify the question to the South Dakota Supreme Court, and Sheriff Kevin Thom’s motion to dismiss.

Construction of the Keystone XL pipeline is currently on hold. In mid-March, the Ninth Circuit Court of Appeals rejected the appeal from TC Energy (formally known as TransCanada) to overturn a decision made last year to stop pre-construction of the pipeline.

The ACLU’s complaint and other legal documents related to the case can be found here: https://www.aclusd.org/en/cases/freespeech.

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