Federal Court Blocks South Dakota's Pro-Pipeline, Anti-First Amendment 'Riot Boosting' Law
from the SD-legislature-says-'no-life-changing-protests-on-our-watch,-thanks!' dept
When the protests of the Keystone XL pipeline project took off, state legislators (and prosecutors) tried to find some way to curb protected First Amendment activity. These efforts started with federal agencies like the CBP and FBI, which did what they could to make life difficult for protesters and journalists covering the protests.
Efforts were made to turn protesting into an illegal act, or hand protesters a bill for services rendered by police officers already being paid to do the sort of thing they were doing — keeping an eye on protests.
In South Dakota, legislators pushed through a law targeting “riot-boosting.” It defined this as the encouragement of violence during protests. It was passed in a hurry during the last week of the 2019 legislative session with an emergency clause that put it into effect immediately. The ACLU immediately sued, claiming the law was unconstitutional. As Courthouse News reports, a federal judge has arrived at the same conclusion.
A federal judge in South Dakota Wednesday blocked provisions of a new anti-rioting law signed by Gov. Kristi Noem earlier this year that aims to quash protests against the Keystone XL pipeline.
U.S. District Judge Lawrence Piersol granted American Civil Liberties Union’s request for the injunction for multiple riot laws and statutes, including Senate Bill 189, known as the “riot-boosting law.”
The ACLU, representing four environmental groups and two individuals, claims SB 189 violates the First and Fourteenth Amendments because the law fails to define what actions are deemed a violation that would constitute civil or criminal penalties.
The decision [PDF] notes that all four of South Dakota’s anti-rioting laws are impermissibly vague when it comes to regulating speech. The court points out some of these laws might be salvaged with some tighter editing, but the most recent one — put into place specifically to target pipeline protests with the intent of targeting “out-of-state money funding riots” — is the most problematic.
If all it takes is some forceful language using violent imagery to break the law, many of those leading demonstrations key to establishing and protecting civil rights would have been treated as criminals.
Even if the encouragement to protesters is in forceful language as was demonstrated by Charles Evers’ speech summarized in part in NAACP v. Claiborne Hardware C0., 458 U.S. 886, 900 n.28 (1982) (Evers told the assembled black people that any “uncle toms” who broke the boycott would “have their necks broken” by their own people. This was directed at all 8,000 black residents of Claiborne County), that is protected speech. None of these three terms encompass fighting words or true threats words that provoke immediate violence and are net protected by the First Amendment. So, “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” Claiborne Hardware, 458 U.S. at 927; Hess v. Indiana, 414 U.S. 105, 108-09 (1973). The many words or expressive activities that arise within these three terms, to advise, encourage or solicit, might in some instances be offensive to some or to many people, but they are protected by the First Amendment and cannot be the subject of felony prosecution or of tort liability and damages.
Beyond that, the law’s targeting of people doing nothing more than “advising, encouraging, or soliciting” has the potential to ensnare people who aren’t directly participating in protests (or riots).
By comparison to direction, the court finds the separate admonitions, whether criminal or civil, against advising, encouraging or soliciting to be vague in part because of their very breadth.
Sending a supporting email or a letter to the editor in support of a protest is encouraging. Giving a cup of coffee or thumbs up or $10 to protestors is encouraging the protesters. Holding up a sign in protest on a street corner is encouraging. Asking someone to protest is soliciting. Asking someone for $10 to support protesting is soliciting. Suggesting that the protest sign be bigger is advising. The possible violations of those felony or damage creating statutes against advising, encouraging or soliciting goes on and on. Encouragement, advice or solicitation for the protest on social media would be a fertile ground for damages or charges or both. And each of the examples involve protected speech or expressive activity.
The sometimes-unpleasant outcomes — the protests that turn to riots — cannot be targeted by laws that endanger the key free speech protections that allow protests to exist in the first place. If laws like these had been on the books several decades ago, America would be a very different — and much worse — country.
Imagine that if these riot-boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result? Dr. Martin Luther King, Jr. was the President of the Southern Christian Leadership Conference with headquarters in Atlanta, Georgia. Dr. King personally took part in peaceful demonstrations in Birmingham, Alabama, against segregation. While jailed, Dr. King wrote his public “Letter from Birmingham Jail.” Dr. King wrote regarding the Birmingham demonstrations, “You express a great deal of anxiety over our willingness to break laws.”
And Dr. King goes on to explain in agreeing with Aristotle that “an unjust law is no law at all,” and then on to say “to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it [permitting] becomes unjust.” Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law for the many types of damages which could be claimed under SDCL 20-9-54 and 20-9-56 for soliciting, advising or encouraging another person to break the law. SDCL 20-9-56 also creates a separate civil cause of action for soliciting or compensating any other person to commit an unlawful act or to be arrested. Dr. King and the Southern Christian Leadership Conference could be liable for treble damages under that separate cause of action. The separate cause of action in SDCL 20-9-56 is not vague but it is unconstitutional in that it does not meet the Brandenburg requirements and infringes on protected speech and association.
And with that, the affected laws are blocked. Some will need to be rewritten. Some will have to have certain clauses removed. And the new “riot-boosting” law is blocked… at least until legislators find some way to achieve their goals without deciding the first thing against the wall should be protected Constitutional rights.