The right to join with your friends and neighbors in protest or peaceful assembly is critical to a functioning democracy and a right guaranteed by the Constitution.

That’s why we’re taking South Dakota to court.

The American Civil Liberties Union and the ACLU of South Dakota filed a federal lawsuit challenging South Dakota laws that threaten criminal and civil penalties for protesters and social justice organizations that encourage organized protests, including those that could occur around the Keystone XL Pipeline. These laws, which include the newly-enacted “Riot Boosting” Act, violate the First and Fourteenth Amendments.

The lawsuit was filed on behalf of four organizations: the Sierra Club, NDN Collective, Dakota Rural Action, and the Indigenous Environmental Network; and two individuals: Nick Tilsen with NDN Collective and Dallas Goldtooth with Indigenous Environmental Network. All are planning to protest the pipeline and/or encourage others to do so.

The lawsuit asserts that laws chill protected speech and fail to adequately describe what speech or conduct could subject protesters and organizations to criminal and civil penalties. Think about it: Even the possibility of facing litigation brought on by the state could chill the speech of peaceful protesters and their supporters. Just the threat of having to hire an attorney to defend yourself against the state in court and explain why your support of the pipeline protests was not riot-boosting is precisely what chills speech.

The Riot Boosting Act, which was passed during the 2019 South Dakota legislative session, gives the state the authority to sue any individual or organization for “riot-boosting,” or encouraging a protest where acts of violence occur. The law mirrors two existing state laws that criminalize similar speech. Under the laws, individuals and organizations — regardless of their intent to incite violence, the likelihood that their speech or conduct would result in violence, or the imminence of the intended violence — could be subject to civil and/or criminal penalties.  Moreover, the laws do not clearly describe what conduct or speech is considered “riot-boosting” or “encouraging” a riot. The ACLU argues that such vague and broad language invites arbitrary enforcement, will chill protected speech, and will result in indiscriminate targeting of peaceful organizers.

No one should have to fear the government coming after them for exercising their First Amendment rights. We’re prepared to stand on the front lines and defend your right to peacefully protest and express your opinions freely.

We hope you’ll join our efforts to fight back as an ACLU Legal Observer, Volunteer, or supporter. Our voices won’t be silenced. Will yours? 

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