South Dakota Lawmakers Consider Bills that Would Chip Away at Protesters’ First Amendment Rights

February 26, 2020 11:30 am

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ACLU of South Dakota
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No one should have to fear the government coming after them for exercising their First Amendment rights. But two bills advancing through the South Dakota Legislature would do just that.

The ACLU of South Dakota opposes Senate Bill 151 and House Bill 1117.

  • Senate Bill 151, which will be heard on the Senate floor this week, would increase the legal penalties for trespassing on, tampering with or damaging a critical infrastructure facility or public service and will criminalize activity far beyond the intentional causing of property damage, extending penalties to activity that “interferes with” the operations of critical infrastructure.
  • House Bill 1117, which will be heard in the Senate Judiciary Committee next week, would repeal and revise certain provisions regarding riot, establishes the crime of incitement to riot and revises provisions regarding civil liability for riot and riot boosting – would intimidate peaceful protesters and chip away at their constitutional rights.

“The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy and at the core of the First Amendment,” said Candi Brings Plenty, indigenous justice organizer for the ACLU of South Dakota. “These rights are not without limits, of course, but Senate Bill 151 and House Bill 1117 seem specifically designed to intimidate and dissuade people from protesting at all. The threat of having to prove yourself in court is exactly what chilling speech and chipping away at our First Amendment rights looks like.”

In the case of Senate Bill 151, existing law already prohibits trespass and malicious destruction of property. Specifically, the bill’s vague and ambiguous language would have a chilling effect on expressive activity and lead to self-censorship among activists fearful of criminal penalties.

Senate Bill 151 would restrict free speech and impose harsh penalties on people for engaging in peaceful, nonviolent civil disobedience – like staging a march that interferes with a tanker truck delivery or blocking a roadway into a refinery. This bill even goes so far as to make even accidental critical infrastructure interference a misdemeanor. Activists protesting the Keystone XL pipeline, for example, could be in a position of trying to prove in court that they weren’t knowingly trying to “inhibit” or “interfere with” construction.

Senate Bill 151 builds on a nationwide trend of anti-protest legislation that aims to chill protest. In 2018, on the heels of some of the most successful environmental protests in modern history, states moved forward with their own variations of these bills. Eight states, including Oklahoma, Iowa, North Dakota and Louisiana, have enacted similar laws. To date, Louisiana has convicted several individuals under its critical infrastructure crimes statute but all of those convictions are currently being challenged on constitutional grounds.

House Bill 1117 is Gov. Kristi Noem’s second attempt at a “riot boosting” law and is an unnecessary effort to legislate peaceful protest in South Dakota and creates a state of fear that pits activists and organizers exercising their First Amendment rights against government officials and law enforcement.

It’s irrefutable that this bill, like the 2019 “Riot Boosting Act” it replaces, was sparked by a desire to suppress protests around the Keystone XL pipeline. While proponents of this bill say they’re concerned only about riots, the context is clear: this legislation is a direct reaction to some of the most effective protests in modern American history, including the work done by water protectors challenging the construction of the Dakota Access Pipeline at Standing Rock.

Instead of passing this House Bill 1117, lawmakers should focus on ensuring the civil rights of people planning to peacefully protest the Keystone XL Pipeline are protected and consulting with the people who will bear the heaviest burden of any laws regarding protest.

There are better ways to address concerns of public safety and peaceful protest. Elected officials should be working to create an environment in which the government recognizes its obligation to ensure that the rights of water protectors and advocates are protected, not erased. The voices of the people must be heard in a meaningful way, and taking that opportunity away from South Dakotans is a subversion of our entire democratic process.

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