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.

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Comments on “Federal Court Blocks South Dakota's Pro-Pipeline, Anti-First Amendment 'Riot Boosting' Law”

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35 Comments
Rocky says:

Re: Re: Re: Re:

Uhm, eminent domain is something the government does. What I’m referring to is that the company building the pipeline sized private property, evicted the legal landowners and started building the pipeline before any negotiations about expropriations took place.

The landowners sued and the court basically said ‘tough luck and f*ck your constitutional rights!’

So who was it that trespassed and destroyed private property again?

Anonymous Coward says:

Re: Re: Re: Re:

This isn’t actually true according to law. There’s plenty of scenarios where your property rights don’t allow you to do anything you want to do on your property and 1st Amendment rights don’t actually end on private property, they just don’t restrict you from asking people to leave, but you can’t force the government to quell public speech on private property. And human beings still have civil rights regardless of whether they’re on private property or not, so there are other limitations. But sure, make up the law in your head. That will go over well in court when your assertions are actually tested.

GS (profile) says:

Re: Re: Re:2 Re:

"you can’t force the government to quell public speech on private property"

Actually yes I can. When I tell you that you’re no longer welcome on my property and when you refuse to leave that’s called trespassing. I can call the police and have you arrested for trespassing. Then your little verbal tirade about whatever the hell are you babbling about ends.

That Anonymous Coward (profile) says:

It’s almost like they don’t work for the people who elected them, just those who hand them the most money.

I mean why not go back to the original pipeline plan that didn’t run through land sacred to people or water ways a spill would destroy.

Oh that’s right, it would have run by a bunch of NIMBY white folk who worried about a spill hurting their town.

You know it’s illegal to tell people about the illegal things the government is doing.

Anonymous Coward (user link) says:

If they wanted to stop rioting

If they really were targeting anti rioting activity, they’d explicitly outlaw Agent Provocateur activities via police/private security firms with hard jail times for all involved (including anyone authorizing/budgeting activity).

Another great thing to make illegal would be kettling by police of protestors. https://en.wikipedia.org/wiki/Kettling .

Stephen T. Stone (profile) says:

Re: Re: Re:

For the record, the measure also bans both discrimination based on English proficiency and threats to call immigration authorities “based on a discriminatory motive”. The full measure applies only to public accommodations, employment, and housing.

That said: As much as I agree with the intent of the law, the “saying ‘illegal alien’ is now punishable by a fine” part might not survive a First Amendment challenge. NYC could make a case for the phrase being discriminatory (since it is largely based on race/ethnicity). But it would need to be one hell of a case.

A Guy says:

Re: Re: Re:3 Re:

A couple decades ago (rounding) I worked for a construction company that was almost entirely staffed by illegal immigrants for about a month while taking on a temporary summer job. People were in fact underpaid for the housing industry and I was briefly fired for cutting through an electric saw cord after my supervisor disallowed me from holding the saw in such a way as to stop the cord from coming close to the saw blade. This was of course before the housing collapse.

Anyway, I briefly considered reporting the company for its hiring practices but the Mexicans (it’s not a pejorative, many of them were literally Mexican citizens and some were in various stages of green card acquisition) were nice enough and the guy who wouldn’t let me hold the saw right was a white guy. The owner changed his mind a day later but I ended up quitting after my car needed a new transmission and I was better off moving closer to the university I was attending while it was fixed.

It seems one of this laws effects is to protect the employers of illegal aliens (ooo I used the term) from being found out and prosecuted. The owner literally gave his head carpenter time off to go across the country to California to pick up his green card when it was finally issued. He had to travel across the country because that’s where the immigration people thought he was and he didn’t want to dispel the myth. (That means it was not legal to hire him and the owner knew it, but he was a good carpenter from Mexico.)

I haven’t read the text of the law but it seems designed to chill outrage at real and widespread law flouting whether I personally agree with the law or not.

A Guy says:

Re: Re: Re: Everyone is getting in the act

It’s not that big a leap. One: "illegal alien" is in the federal criminal code so they outlawed a legal term.

One of the California ballot initiative a*holes should try to get the word tax outlawed in California. That would be a pretty analogous situation to this.

Also, the right likes to use the term in their protests for real. I doubt it will survive any kind of judicial review.

A Guy says:

Re: Re: Re:2 Everyone is getting in the act

I guess a more analogous situation is outlawing gringo, yankee, or hillbilly. Only after those are introduced into the criminal code so you literally outlaw discussing the words of the law.

New York should outlaw the term yankee and gringo next for being pejoritive towards the majority of its population and see how that flies.

A Guy says:

Re: Re: Re:2 Everyone is getting in the act

Honestly, unless the criminal activity directly negatively impacts me personally or someone I know well and like I don’t care about any of it. (except murder where the victim can’t be construed as causing their own demise, intentionally causing suffering, or permanently harming children)

Anyway, I care not one bit about illegal immigration. I do not support it. I do not care if they stay or go. I do not care if its stopped. I actually have religious similarities with a lot of the source countries for the illegal immigration and love tacos/burritos/nachos ect so their culture isn’t really different enough to even cause me to be uncomfortable around them usually.

I could not tell the difference between a Canadian and a Minnesotan either. I have met both and their accents along with the rest of their mannerisms are too close for me to tell them apart. I also don’t care. Canadians and Minnesotan’s are so culturally similar that I don’t know how often they can tell each other apart.

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