PIERRE, S.D. — The American Civil Liberties Union of South Dakota is challenging Republican Gov. Kristi Noem's recently signed "riot boosting" bill in federal court, arguing that it violates rights to free speech and due process.
SB 189 is one of two bills in a controversial pipeline bill package introduced by Noem late in the 2019 legislative session, ahead of TransCanada's proposed construction of the Keystone XL oil pipeline through the state. The bill establishes civil penalties for "riot boosting," or contributing money to or encouraging protesters who engage in violence meant to prevent the construction of a pipeline.
ACLU-SD argues in Dakota Rural Action v. Noem that the bill is vague, and what could qualify as riot boosting is open to interpretation. And out of fear of legal repercussions, citizens could be less likely to exercise their right to free speech.
If a citizen or group was deemed to be riot boosting, ACLU-SD said SB 189, as well as South Dakota codified laws sections 22-10-6 and 22-10-6.1, "expose the plaintiffs to immediate and irreparable harm."
"The lawsuit 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," ACLU-SD said in a Thursday news release.
NDN Collective is one of four advocacy groups listed as plaintiffs in the case. NDN Collective President and CEO Nick Tilsen said in a Thursday news release that SB 189 "would make a lot of people think twice about supporting or joining a protest" for fear of legal action.
“This law is so broad and vague that simply supporting people on the ground — through donations of supplies, financial assistance, or by organizing support pages on social media — could make individuals or organizations subject to criminal or civil penalties if anything deemed as ‘violence’ breaks out at the protest," Tilsen said. "It wouldn’t matter if the person or organization who made the donation was even at the protest."
Spokesperson for Noem Kristin Wileman said the governor's office has not reviewed the lawsuit as of Thursday afternoon, but Noem "remains committed to upholding these laws as a means to protect our people, our counties, our environment and our state."
"She stands behind her pipeline legislation, which does not place restrictions on peaceful protest or peaceful assembly," Wileman said.
Attorney General Jason Ravnsborg at an unrelated meeting Thursday afternoon declined to comment on the litigation before reviewing it, but said he stood by the constitutionality of SB 189.
"We are to enforce the will of the Legislature and the governor, so we will take a look at it and respond appropriately," he said.
ACLU-SD is representing four advocacy organizations — the Sierra Club, NDN Collective, Dakota Rural Action and the Indigenous Environmental Network — as well as two individuals in the suit. All of the plaintiffs are "planning to protest the Keystone XL pipeline and/or encourage others to do so," per ACLU-SD.
Mark Winegar, chair of the Sierra Club South Dakota Chapter, called the laws "a blatant attempt to criminalize free speech and intimidate those who would exercise their First Amendment rights."
“We are hopeful that 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," Winegar said.
ACLU-SD has voiced concerns over the bill's constitutionality since Noem introduced it in early March, less than two weeks before the end of the legislative session and weeks after the deadline to introduce bills.
Noem said in a Wednesday news release after signing SB 189 that it "support(s) constitutional rights while also protecting our people, our counties, our environment, and our state."
"I fully support the freedoms of speech and assembly, but we must also have clear expectations and the rule of law," Noem said. "My pipeline bills make clear that we will not let rioters control our economic development."