South Dakota Governor Kristi Noem and Attorney General Jason Ravnsborg today backed down from their unconstitutional attempts to silence protesters. Under a settlement agreement, which was submitted for court approval today, the state agreed to never enforce current state laws that prohibit protected speech and are aimed at suppressing protests against the Keystone XL pipeline. The settlement will make permanent an earlier federal court ruling that temporarily blocked enforcement of unconstitutional provisions of the anti-protest laws.
The agreement today comes in a lawsuit filed by the American Civil Liberties Union, the ACLU of South Dakota and the Robins Kaplan law firm 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 currently protesting or planning to protest the Keystone XL pipeline and/or encouraging others to do so.
The lawsuit challenged unconstitutional provisions of several South Dakota laws, including the “Riot Boosting” Act, that threatened activists who encourage or organize protests, particularly protests of the Keystone XL pipeline, with fines, civil liabilities, and/or criminal penalties of up to 25 years in prison.
In September, U.S. District Judge Lawrence L. Piersol found the anti-protest provisions of the laws unconstitutional and temporarily blocked state officials from enforcing them. Under the terms of the settlement, Noem and Ravnsborg will send a letter to the state’s attorneys in each county, telling them to direct law enforcement in their jurisdictions not to enforce the unconstitutional provisions of the laws. They will also compensate plaintiffs for attorneys’ fees.
Construction of the Keystone XL pipeline is likely imminent. Pre-construction activities are already underway and a hearing on the new Environmental Impact Statement regarding the Keystone XL pipeline, which will serve as the basis for approval of any future permits, is coming up next Monday.
South Dakota’s “Riot Boosting” Act joins a recently growing number of government efforts to stifle protests, particularly those led by Indigenous and environmental activists, often in opposition to pipelines.
Stephen Pevar, senior staff attorney with the ACLU's Racial Justice Program: “The state’s anti-protest efforts were plainly unconstitutional. This settlement helps ensure that no one has to fear the government coming after them for exercising their First Amendment right to protest. This settlement should also serve as a lesson for other legislatures considering similar anti-protest efforts.”
Dallas Goldtooth, organizer, Indigenous Environmental Network: “South Dakota knew these laws couldn’t stand up to our legal challenge so rather than face embarrassment they decided to capitulate. We will celebrate this win, but remain vigilant against further government attempts to outlaw our right to peacefully assemble. We will fight on for the protection of the Oceti Sakowin people and the sacredness of Mother Earth with no hesitations.”
Brendan Johnson, partner with the Robins Kaplan law firm: “By equating peaceful organization and support of protest with ‘riot boosting’ and incitement to riot, the government stifled our clients’ abilities to speak out against the Keystone XL Pipeline. We’re happy that the state recognized that these vague and overbroad laws threatened the First Amendment rights of South Dakotans on every side of the issue and that, as a result of this settlement, no one’s voices will be silenced.”
Nick Tilsen, president and CEO, NDN Collective: “The ‘riot boosting’ act was an insult to the Constitution and an attempt to muzzle the voices of the people and our movement to defend Mother Earth. This settlement accomplishes everything that we set out do with the lawsuit and makes the temporary injunction a permanent one. Onward, we will continue to fight for air, land, water and our rights.”
John Harter, board chair, Dakota Rural Action: “Gov. Noem and Attorney General Ravnsborg settled this case because they are clearly in the wrong – something they and the Legislature were warned of as they rushed to pass this unconstitutional law. In fact, the whole process of pushing pipelines through this state – from the use of eminent domain to benefit a foreign corporation, to cracking down on citizens protecting the land and water – violates our constitution and leaves taxpayers, once again, to foot the bill. We are proud to have stood alongside our Native allies to fight for the rights of all South Dakotans, and we thank the ACLU for their work on this crucial case.”
Mark Winegar, South Dakota chairman, Sierra Club: "We're glad the state has backed down in its oppressive attempts to criminalize free speech. These laws clearly represented an unconstitutional attack on South Dakotans' right to peaceful protest, and it's a relief to know that they’ll never be enforced."
An ACLU blog post on today’s settlement agreement is here: https://www.aclu.org/news/free-speech/south-dakota-governor-caves-on-attempted-efforts-to-silence-pipeline-protesters.
Additional information about the ACLU’s First Amendment challenge to South Dakota’s anti-protest laws is available here: https://www.aclu.org/blog/free-speech/rights-protesters/south-dakota-legislature-has-invented-new-legal-term-target.
About the ACLU of South Dakota
The American Civil Liberties Union of South Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of South Dakota is part of a three-state chapter that also includes North Dakota and Wyoming. The team in South Dakota is supported by staff in those states.
The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people. In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ communities. The ACLU of South Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of South Dakota.