Federal Judge Blocks South Dakota County’s Attempt To Silence Ballot Petitioners The Government Doesn’t Like

Free Speech

from the don't-be-so-fucking-obvious dept

Full disclosure time, Techdirt peeps! I am a resident of this state. And, as such, I am painfully familiar with the governor’s pro-Trump performativeness, as well as the state legislature’s general disdain for the people it serves.

South Dakota is basically an on-shore tax shelter camouflaged by farmland and ultra-patriotic tourist traps. Governor Kristi Noem loves one amendment (the 2nd) and generally disregards the others. Despite being home to the one of the most massive COVID outbreaks in the United States, the state never instituted any lockdown procedures.

Noem also asked local law enforcement to sue on her behalf to block a successful ballot initiative legalizing recreational marijuana use. (She also inappropriately used her position to secure a real estate appraiser’s license for her daughter.) [Oh, and she he also wants to make it illegal for state-funded education institutions to refer to anyone by their preferred pronouns.]

It appears the state’s government — at multiple levels — is concerned the governed might be capable of producing groundswell movements that will upset its bigoted, sexist apple cart.

Dakotans for Health is a public interest group that has been attempting to create a ballot measure that would undercut the state’s anti-abortion measures that were aided and abetted by the Supreme Court’s recent abandonment of its own Roe v. Wade precedent. (The group also is seeking to create a ballot measure eliminating the state tax on groceries, but that is unlikely to have provoked the policy change being sued over, especially since Governor Noem herself has entertained the idea.)

It appears Dakotans for Health were possibly swaying too many people to their side. This led to Minnehaha County officials changing the rules of engagement in hopes of deterring people not aligned with their viewpoints from effectively expressing their viewpoints.

In May of this year, Minnehaha County Auditor Leah Anderson “requested” a policy change, citing a single heated interaction between Dakotans for Health petitioners and a couple of people apparently firmly in the anti-abortion camp.

This incident was the impetus for the amended “Limited Use Policy,” which forbade petitioners from approaching people entering the county’s administration building in downtown Sioux Falls, regulating them to arbitrary areas far removed from the building’s entrance, thus blunting the petitioners’ impact. It also required anyone circulating petitions to get permission from the Auditor prior to utilizing these small, useless areas.

Fortunately (and following the judge’s personal visit to the Administration building to view the affected areas first hand), the County will no longer be able to trample on the rights of people it would rather neither be seen nor heard.

The decision [PDF] recounts the facts of the case, including the judge’s own observations of the administration building. The areas petitioners are restricted to are located far from the most-commonly used entrance. To catch the attention of people visiting the building (which houses not only administrative offices, but the county court and jail), petitioners would need to shout across the parking lot at arriving patrons — something that would be unlikely to attract their interest, much less their signatures.

The court recognizes this new, extremely arbitrary restriction of petitioners to “zones” harms their First Amendment interest in expressing their viewpoint and/or finding an audience for their point of view.

Petition circulators to be effective need to be in a high pedestrian traffic area, close enough to invite voters in a conversational tone to sign the petition. Particularly in South Dakota, confrontational or aggressive or impetuous behavior from petition circulators is counterproductive to the goal of getting people to sign a petition for a ballot initiative. Accordingly, Dakotans for Health has instructed its petition circulators to “Stick to the Script. Your goal is to get the signature, not win the argument. Lengthy discussion and debates distract from that. So stick to the script. It is that simple.”

The previous policy only required petitioners to remain outside of the building and not obstruct any entrances. The new policy moved them far away from the most-used entrance and required petitioners to notify the county about their planned signature drives.

Heading towards the injunction, the federal judge first finds that the sidewalk traditionally used by administration building visitors and petitioners is, indeed, a public space subject to the usual First Amendment considerations.

This Court finds, at least preliminarily, that the sidewalk running in front of the west entrance to the Administration Building is a traditional public forum given the sidewalk’s connection with what indisputably is a public sidewalk, the sidewalk’s long history of being used for petition circulation, Defendants’ recognition of this long history in the Public Use Policy before May 2, 2023, and the sidewalk’s proximity to county legislative activity.

Likewise, the new “free speech zones” (or whatever the County Auditor wants to call them) are too restrictive and too far away to be of any use to citizens. Combined with the rewritten public use policy, the new mandates go far past what’s actually needed to serve the supposed objective of these restrictions: preventing petitioners from blocking entrances and/or entering the administration building.

Requiring petition circulators to remain in the designated areas… burdens substantially more speech than necessary to achieve Defendants’ interests in promoting public safety, efficient access to the Administration Building, and protecting county employees from harassment. As Plaintiffs note, simply enforcing the prior policy would address the Defendants’ concern without imposing a significant burden on Plaintiffs’ method of communication. After all, that policy required petition circulators to remain outside county buildings, avoid obstructing people entering and exiting the buildings, and to conduct themselves in a “polite, courteous and professional manner.”

Defendants could also convert, for instance, the one reserved law enforcement and adjacent handicap-accessible parking spots just outside the west entrance into a designated area, as this would allow Plaintiffs to solicit signatures in a conversational tone while at the same time secure efficient access to the west entrance by removing them from that limited area of the sidewalk right outside the west doors. In short, Defendants could easily achieve their interests
without restricting petition circulators to the designated areas over fifty feet from the west entrance doors. And while Defendants are neither required to adopt this Court’s suggestions nor use the least restrictive means to achieve their interests, they cannot “regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”

Dakotans for Health win. The new policy is blocked, at least for the time being.

Plaintiffs have shown an irreparable harm as discussed above. There appears to be minimal harm to Defendants to require them to revert to the policy that they had in place before May 2, 2023, or to excise from the new policy the “designated areas” provision and the “check-in” prescreening with the Auditor. On the one hand, Plaintiffs face possible interruption of their First Amendment rights; on the other hand, entry of a preliminary injunction requires Defendants and their employees to endure the nuisance of petition circulators and blockers near the exterior doors on the west side of the Administration Building, which can be mitigated by better enforcement of the prior Public Use Policy, or alternatively devising a narrowly tailored policy that passes constitutional muster.

The government can still press its case to get the injunction lifted, but given what the court says here, it seems extremely unlikely it will succeed. And no matter what’s been stated on the record, it seems pretty clear this was enacted to keep Dakotans from Health from rallying support for ballot measure restoring South Dakotans’ reproductive rights. If the county wants to ingratiate itself with the governor, it will need to find a better, actually constitutional way of achieving this dubious goal.

Filed Under: 1st amendment, dakotans for health, free speech, leah anderson, minnehaha county, petitioning, public spaces, right of assembly, south dakota