South Dakota’s protest laws took center stage in U.S. District Court in Rapid City on Wednesday afternoon.
Judge Lawrence Piersol is expected to issue a ruling at a later date. The ACLU is requesting that the state be immediately prohibited from enforcing the three laws while the case moves forward. Piersol also heard three motions from the state on Wednesday: motion for judgment on the pleadings, motion to certify the question to the South Dakota Supreme Court and Pennington County Sheriff Kevin Thom’s motion to dismiss.
States are within their rights to prohibit the incitement of violence, which is “a narrow category of unprotected speech” that refers to words that will likely cause imminent violence, according to Stephen Pevar, attorney with the ACLU. However, the state’s laws go beyond that to criminalize advocacy that is “at the core of our political discourse,” he said.
“They instill a fear among peaceful organizers that their actions or words could be misconstrued by the government as ‘riot boosting.’ As a result, activists are now forced to think twice before even encouraging others to join a protest, let alone train, educate, or advice those who plan to protest,” he said.
The ACLU filed the lawsuit on behalf of Dakota Rural Action, Indigenous Environmental Network, NDN Collective, the Sierra Club and two individuals. The lawsuit is filed against Gov. Kristi Noem, Attorney General Jason Ravnsborg and Thom.
Noem and Ravnsborg have denied the ACLU’s allegations in court records. Noem is waiting for the judge’s ruling and there’s no indication when that will be handed down, according to Noem’s spokeswoman Kristin Wileman.
“The governor fully supports freedoms of speech and assembly. There must also be law and order. No one has the right to incite violence, and for those who do, there should be consequences for their actions,” Wileman said.
More: ACLU, South Dakota head to court over Keystone XL pipeline protest law
The ACLU is asserting that the state’s three protest laws violate the First and 14th Amendments of the U.S. Constitution by chilling protected speech and failing to describe the speech and conduct that would subject protesters to criminal and civil penalties.
In particular, the ACLU is challenging the new law allowing the state to sue any person or organization for “riot boosting” or encouraging a protest where acts of violence occur, and the state’s two existing criminal riot laws on which the riot boosting law is based. Noem proposed the riot boosting legislation during the session, saying that its purpose is to ensure that the Keystone XL pipeline is built through South Dakota in a safe manner while the state, counties, water, environment and people are protected during the construction.
A rally to protest Noem’s riot booster law took place in Rapid City before the court hearing on Wednesday afternoon, with a group walked from NDN Collective to the federal courthouse carrying signs supporting free speech.
Following Wednesday’s hearing, Dakota Rural Action Board Chair John Harter said that the government has dismissed Native Americans and South Dakota farmers and ranchers who oppose the Keystone XL pipeline, which would have a “substantial impact” on their lives.
“Our opposition to the pipeline construction may agitate Gov. Noem, but the First Amendment guarantees us the right to make our voices heard — even if Gov. Noem and TC Energy want us all to shut up,” Harter said in a statement.