June 12, 2019

The U.S. District Court in Rapid City heard arguments today in Dakota Rural Action v. Noem, a case that challenges 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.

At issue is the assertation 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.

“Let’s be very clear: States are within their rights to prohibit incitement of violence — a narrow category of unprotected speech that refers to words intended and likely to cause imminent violence. But these laws go far beyond that by criminalizing impassioned advocacy that lies at the core of our political discourse,” said Stephen Pevar, attorney with the American Civil Liberties Union. “They instill a fear among peaceful organizers that their actions or words could be misconstrued by the government as ‘riot boosting.’ As a result, activists are now forced to think twice before even encouraging others to join a protest, let alone train, educate, or advise those who plan to protest. We’re happy to have had the opportunity to raise these issues in court.”

The American Civil Liberties Union and the ACLU of South Dakota argued the case on behalf of 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.

Because the challenged laws expose the plaintiffs to immediate and irreparable harm, the ACLU asked the court to immediately prohibit the state from enforcing these laws as the case goes forward. Judge Lawrence L. Piersol will issue a written ruling at a later date.

“The government has dismissed Native Americans, South Dakota farmers and ranchers and others who oppose the Keystone XL pipeline. But the pipeline, if constructed, would have a substantial impact on all of our lives,” said John Harter, Dakota Rural Action board chair. “Our opposition to the pipeline construction may agitate Gov. Noem, but the First Amendment guarantees us the right to make our voices heard – even if Gov. Noem and TC Energy want us all to shut up.”

During Wednesday’s hearing, Judge Piersol also heard 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.

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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