Yes, it is nice to see Dusty on campus. However, we in the media (and that would include the SDGOP spin blog) cannot take any pictures or video of Dusty on campus without giving notice to SDSU’s director of marketing and communications, per SDSU’s Policy 6:2 on media access to university property. Given that Dusty’s campaign event was happening at an athletic venue, SDSU’s policy may even require permission from the director of marketing and communication. The Johnson campaign itself had to secure permission from SDSU to plant its sign and hand out goodies to game attendees, since, per Regental Policy 6:13 on facilities use by private parties, since the “Institutional facilities and grounds” that we taxpayers make possible “are not open to the public for assembly, speech, or other activities as are the public streets, sidewalks, parks or seats of government.”
SDSU PR apparently didn’t dispatch UPD to boot the blog photographer from campus for covering the Johnson campaign. I would suggest that SDSU’s stiff restriction on media access to campus should bend when it comes to covering the campaign efforts of a public figure seeking votes from thousands of people in a campus setting.
That said, campaigning at the gate of a big collegiate sports event is a great way to meet a lot of voters at once. KDLT says 15,806 came to watch SDSU beat Drake; envelope math says 90% were Jacks fans, 90% of them were voting age, 80% of them were South Dakotans, and 47% of them were Republicans, so perhaps 4,800 of those fans can help Dusty win his primary against Shantel Krebs less than nine months from now. Billie Sutton, Tim Bjorkman, contact our Regental campuses and find out when they’ll let you set up political shop at the gates!
The U.S. District Court of South Dakota’s Western District just threw out a lawsuit that white-supremacist crank Rudy Stanko filed against Big D Oil Company earlier this year. Stanko complained that Big D Oil, which operates gas stations in Rapid City, Custer, Deadwood, Sturgis, and Belle Fourche, refused in October 2016 to distribute Stanko’s racist screed The Stampede on their property. (This blog reported last March that some less-circumspect West River gas stations allowed Stanko’s angry claptrap on their premises; Stanko stopped publishing The Stampede shortly thereafter.) Stanko argued that by “allowing other newspapers to be freely distributed or sold” on their property but not his papers, Big D Oil, its CEO, and its district manager were violating his First Amendment rights and other statutory civil rights.
Judge Jeffrey L. Viken doesn’t have time for this horsehockey. In a sixteen-page order, Judge Viken tells Stanko that Big D Oil…
is not the state or an entity “act[ing] under the color of state law” and thus can’t be sued for deprivation of rights under civil rights law 42 USC § 1983;
wasn’t conspiring with anyone against Stanko thus can’t be sued for conspiracy to interfere with civil rights under 42 USC § 1985;
wasn’t discriminating against any protected class… and hey! Stanko didn’t even demonstrate that he is part of a protected class. (Sorry, Rudy: saying that you are a “blue-eyed White Plaintiff… exercising his 1st Amendment politically incorrect Southern religious ideologies” does not make you a protected class.)
Judge Viken didn’t even get to the main point that should be obvious to all of us regular citizens: Big D Oil’s shops are private property, and they can display or not display whatever papers, posters, and products they want. The main points above were all Judge Viken needed to boot Stanko’s complaint.
(As bonus boneheadery, Stanko also failed to serve a copy of his complaint to CEO Don Policky, whom Stanko named as a defendant. You can’t take someone to court until you put the papers in his or her hands.)
Stanko’s bad decisions and the resulting consequences seem to have led him down a pathetic path of white grievance and scapegoating. All we can do is reject his hateful ramblings, as Big D Oil did last year, and hope wise judges like Jeffrey Viken will dismiss Stanko’s conscienceless lawsuits as smartly and swiftly as possible to protect those who reject Stanko from lingering court costs.
One of the rotating banner images on sdsos.gov right now shows Secretary Shantel Krebs on her “Value the Vote” trip to Mobridge High School. The same photo appears on Krebs’s Facebook page, dated March 25, 2016. There the Secretary is, front row center. Way in the back, straight above and behind, one young man makes gang symbols with his hands, because, you know, har-de-har-har.
A less amusing chucklehead (yup, wear that shirt, I’ll use the word) sports the traitor flag of the Confederacy on his black t-shirt in the front row, two spots to the Secretary’s right, and to the immediate left of an adult supervisor whom we can only hope spoke sternly to the chucklehead about racism, history, and respect after the photo.
The First Amendment permits private citizens to express racist sentiments. The boy with the racist traitor flag has as much right to his shirt as the young man next to him wearing what appears to be a combination of a basketball and the four colors of the Lakota medicine wheel on his hoodie has to his. Neither boy sheds his First Amendment rights at the schoolhouse gate, but the First Amendment does not allow either boy to display symbols or engage in other speech at school that may disrupt the school environment. Whether the Confederate flag constitutes such a potential disruption is unclear.
However, it is clear that the Secretary of State of South Dakota is amplifying one wiseacre kid’s decision to prominently display a racist traitor flag at an event promoting the basic American principle that every vote matters. Shantel Krebs, who is also running for Congress, has a First Amendment right to fly that racist traitor flag (she can borrow the new one former legislator Betty Olson is bragging about getting as a present) and wave it over her ranch on her own time, on her Facebook page, and at her campaign events. However, as a government official who takes an oath to support the Constitution of the United States, the Secretary of State must not display the flag of traitors to that Constitution, not to mention traitors to the sanctity of democratic elections that her office protects, in any official capacity on any official documents, print or electronic.
I have listened to career investigators and prosecutors about how to most successfully investigate and prosecute these matters. At their suggestion, one of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law abiding Americans [Attorney General Jeff Sessions, remarks, Department of Justice, 2017.08.04].
Whoa—placing lives at risk? I know that you have to come up with a pretty stark harm to justify overruling the First Amendment, but, as we used to say in high school policy debate, where’s the death on the flow? I scan this list of early Trump leaks (towels, lack of economic knowledge, fear of stairs…) and this more recent list of twelve major leaks (the rude call to Australia, Trump’s disclosure of classified info to the Russian, the Comey memo…) and see no leak that caused any deaths or seems to have the potential to directly cause any deaths. (I welcome the national security experts in the audience to connects any dots they can between leaks and death.)
Jeh Johnson, Obama’s DOD general counsel and then Homeland Security chief, says Trump’s inability to keep information from leaking is bad enough to warrant serious DOJ intervention. But he also warns that going after journalists will be legally problematic:
JOHN DICKERSON: …Give me your assessment of what Attorney General Sessions has said about going after leaks. Is he drawing the line in the right place? And what does he need to balance?
JEH JOHNSON: The leaks right now are really bad. I’ve never seen it this bad. There should be a concerted effort to identify and go after leakers. The one note of caution I’d give the attorney general is what I tell younger lawyers: bad facts make bad law. So before you decide to take on journalists, reporters, and perhaps subpoena their sources, be aware that the courts are going to get involved, and that has the potential for making bad law in this area [Face the Nation, transcript, 2017.08.06 ].
Loudoun County Board of Supervisors chair Phyllis Randall maintained what she called a “county Facebook page” to receive public comment. Loudoun resident Brian C. Davison posted a comment about corruption on the county school board. Randall deleted the comment and blocked Davison for twelve hours. Davison sued, and Judge James C. Cacheris agreed that Randall had violated Davidson’s rights with viewpoint discrimination.
Judge Cacheris found that the Facebook page was a public forum, not a personal social media account:
…As in Rossignol, Defendant’s actions here “arose out of public, not personal, circumstances.” 316 F.3d at 524. The impetus for Defendant’s creation of the “Chair Phyllis J. Randall” Facebook page was, self-evidently, Defendant’s election to public office. She created the page in collaboration with her Chief of Staff the day before she took office, and did so for the purpose of addressing her new constituents…. Defendant then posted to her “Friends of Phyllis Randall” Facebook page, which she had employed during her campaign, and asked that her supporters “visit [her] County Facebook Page[,] Chair Phyllis J. Randall.”… The “Chair Phyllis J. Randall” Facebook page was born out of, and is inextricably linked to, the fact of Defendant’s public office.
Moreover, since creating the “Chair Phyllis J. Randall” Facebook page, Defendant has used it as a tool of governance. The page is, for example, one of two preferred means by which Defendant holds “back and forth constituent conversations.”… In that capacity the “Chair Phyllis J. Randall” Facebook page has, among other things, facilitated Defendant’s coordination of disaster relief efforts after a storm… and Defendant’s efforts to aid a constituent’s daughter seeking to study abroad…. Defendant has further used the page to solicit participation in the “Commission on Women and Girls” – an initiative Defendant runs out of her office…– and to promote and invite attendance at events related to her work as Chair…. And, most frequently, Defendant has used the page to keep her constituents abreast of her activities as Chair and of important events in local government [Judge James C. Cacheris, Memorandum of Decision, Davison v. Loudoun County Board of Supervisors, U.S. District Court, Eastern District of Virginia, 2017.07.25].
Since Randall operated her Facebook page “under color of state law,” the court found that in blocking Davison, Randall censored protected speech:
…When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information…. Defendant did so here, deliberately permitting public comment on her “Chair Phyllis J. Randall” Facebook page…. In practice, Defendant has allowed virtually unfettered discussion on that page…. Indeed, Defendant has affirmatively solicited comments from her constituents…. This sort of governmental “designation of a place or channel of communication for use by the public” is more than sufficient to create a forum for speech….
…If the Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends…. Here, as discussed above, Defendant acted in her governmental capacity. Defendant’s offense at Plaintiff’s views was therefore an illegitimate basis for her actions – particularly given that Plaintiff earned Defendant’s ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards…. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County [Cacheris, 2017.07.25].
Senator Rounds created his verified Twitter account in January 2015, when he took office in the U.S. Senate. @SenatorRounds is the second social media link listed on Senator Rounds’s official U.S. Senate website. This Twitter feed includes numerous updates on official action in the Senate and its committees, plus photos of constituents who visit the Senator in his official capacity in Washington and occasional warm fuzzies to the folks back home. @SenatorRounds looks very much like a social media account that would not exist absent Mike Rounds’s official government position. The logic of Davison v. Loudoun would lead us to conclude that blocking Twitter users from @SenatorRounds based on offense or disagreement with political positions (like the endorsement of Donald Trump for President) is unconstitutional.
The City of Sioux Falls fined West Fargo-based Service Oil Inc. $300 last year for not maintaining its billboard on its otherwise vacant property at I-90 and North Cliff. Last November, Service Oil brought its sign up to code:
This anti-municipal bird-flipping apparently took eight months to make the news (as if there isn’t enough other news happening this month to occupy our attention). Sioux Falls zoning enforcement chief Shawna Goldammer sounds unfazed:
“It is compliant with the current ordinances for being maintained, and it does advertise a property for sale and for lease,” says Goldammer.
…“We have to be aware of free speech and the first amendment rights,” says Goldammer. “We can’t dictate what the sign says only the signs size and location” [Sydney Kern, “SF Man Questions Meaning Behind Oil Company Sign,” KDLT, 2017.07.18].
Cheers to Sioux Falls for supporting the unpleasant side of the First Amendment and not making a fuss that it would likely lose.
The First Amendment, like all amendments, is not absolute. However, a casual search of state law suggests that our only statewide ban on “profanity” is SDCL 54-4-77, which prohibits debt collectors from “using obscene or profane language.” The words “profanity” and “profane” appear nowhere else in statute. We do have administrative rules explicitly prohibiting profane language during visits to state inmates, in interactions with horse- or greyhound-racing officials or employees or representatives of the racing commission, or when working as a pharmacy technician.
Other statutes restrict “obscene” language (e.g., SDCL 22-24-55 and SDCL 22-24-56 restricting smut on school and library computers SDCL 49-31-32 on obscene phone calls, SDCL 49-31-32.1 banning dial-a-porn), but SDCL 22-23-27(11) defines “obscene” as “appeal[ing] to the prurient interest,” and expressing disgust toward the City of Sioux Falls with this particular phrase hardly rouses “a shameful or morbid interest in nudity, sex, or excretion”… at least no more than South Dacola’s reaction, which is to LHFAO.
In a statement Wednesday morning, ABC said: “ABC has reached an amicable resolution of its dispute with the makers of ‘lean finely textured beef.’ Throughout this case, we have maintained that our reports accurately presented the facts and views of knowledgeable people about this product. Although we have concluded that continued litigation of this case is not in the Company’s interests, we remain committed to the vigorous pursuit of truth and the consumer’s right to know about the products they purchase.”
“While this has not been an easy road to travel, it was necessary to begin rectifying the harm we suffered as a result of what we believed to be biased and baseless reporting in 2012,” BPI said in its own statement [Jeremy Barr, “ABC News Reaches Settlement in ‘Pink Slime’ Case,” Hollywood Reporter, 2017.06.28].
Whoo-hoo—new podcast! In this week’s awesome hour of audio from Dakota Free Press, local music teacher Joe Berns tells us what he learned about the Koch Brothers’ vision of “capitalism” at an astroturf meeting in Aberdeen last week. As he critiques some of the claims raised by the Americans for Prosperity speakers, Berns leads us through a delightful adventure in economic philosophy (and really, how could such a philosophical discussion not be delightful?) as we consider “systematic coercion,” slavery, class struggle, Germany, and how maybe healthy capitalism depends on strong labor unions to protect us workers from our corporate overlords… or a world in which there are no giant corporations and we all run our own businesses.
But first, co-host Spencer Dobson and I recap the Aberdeen election, Trump’s proposed cuts to rural economic development, Bob Ellis’s departure from right-wing blogging, and the First Amendment implications of blocking people from the President’s Twitter account. Listen here:
Below are resources for this week’s conversation. If you like what you hear, ring that Blog Tip Jarto help us make the podcast even better!
Aberdeen Election Results (and an invitation to Pope Francis and future contenders to the papacy to join us on the podcast!) [2:15]
I block people from my Twitter account all the time. But I’m not President of the United States.
Columbia University’s Knight First Amendment Institute sent a letter to Donald Trump yesterday asking him to unblock users whom he appears to have blocked due to criticism. KFAI contends that such social media blockage by an elected official is unconstitutional:
Your @realDonaldTrump account constitutes a designated public forum. It is a forum for expression in which you share information and opinions relating to government policy with the public at large, and in which members of the public can engage you, engage one another, and sometimes elicit responses from you. Your Twitter account is a designated public forum for essentially the same reasons that open city council meetings and school board meetings are [footnotes replaced with links; Knight First Amendment Institute, letter to Donald J. Trump, 2017.06.06].
Donald Trump is using his Twitter account to announce official decisions, policy, and events. As KFAI contends, he cannot exclude from that forum citizens who disagree with his decisions or policies or who criticize him in general any more than Dave Lunzman can ban me from Aberdeen City Council meetings or Kevin Burckhard can ban me from Aberdeen school board meetings just because they are unhappy with my criticism of their lack of openness.
But the analogy is imperfect. Blocking Twitter users does not stop users from reading or writing anything; it only complicates that reading and writing. As I tinker with my account, I find I can still mention users who have blocked me, like SDGOP chair Dan Lederman and his sycophant spin blogger Pat Powers. I can’t directly view or retweet their posts, but all I need to do to view their tweets is open up an incognito browser window. If I really want to retweet a post from a user who has blocked me, I just take a screenshot from the incognito… which is more durable, since the tweeter can delete his post but not my screenshot. The local analogy to Trump’s tweet blocks would be if Councilman-Elect Lunzman didn’t let me sit in the front row of seats at a city council meeting and made me click my heels three times before making any statement during public comment period. A government official blocking users from his official account may be censorship, but it’s an odd and weak form of censorship.
The Intercept has obtained internal documents showing that Energy Transfer Partners employed mercenary firm TigerSwan to surveil, infiltrate, and undermine Dakota Access pipeline protestors in North Dakota and all along the controversial pipeline’s route. The leaked documents also show local, state, and federal agencies coordinating their law enforcement effort with these private hired guns. This corporate fascism began under the Obama Administration.
According to The Intercept, TigerSwan gathered drone video surveillance and other evidence to aid law enforcement with arrests and prosecutions, expressed frustration when law enforcement gave protestors leeway, and pushed for “more punitive tactics” like quicker arrests and fines and higher bail.
Referring to pipeline protests as “insurgencies” and “attacks”, TigerSwan resorted to military-style counterterrorism tactics like infiltration and psychological warfare against civilians exercising their First Amendment rights:
The reports also reveal a widespread and sustained campaign of infiltration of protest camps and activist circles. Throughout the leaked documents, TigerSwan makes reference to its intelligence-gathering teams, which infiltrated protest camps and activist groups in various states. TigerSwan agents using false names and identities regularly sought to obtain the trust of protesters, which they used to gather information they reported back to their employer, according to the TigerSwan contractor.
…In an October 3 report, TigerSwan discusses how to use its knowledge of internal camp dynamics: “Exploitation of ongoing native versus non-native rifts, and tribal rifts between peaceful and violent elements is critical in our effort to delegitimize the anti-DAPL movement.” On February 19, TigerSwan makes explicit its plans to infiltrate a Chicago protest group. “TigerSwan collections team will make contact with event organizers to embed within the structure of the demonstration to develop a trusted agent status to be cultivated for future collection efforts,” the report notes, later repeating its intent to “covertly make contact with event organizers” [Alleen Brown, Will Parrish, and Alice Speri, “Leaked Documents Reveal Counterterrorism Tactics Used at Standing Rock to ‘Defeat Pipeline Insurgencies’,” The Intercept, 2017.05.27].
TigerSwan ascribed to Energy Transfer Partners’ opponents “a strong religious component” and a “jihadist insurgency model.” In a September 22 situation report to ETP, TigerSwan pointed out the presence of Palestinians at a Mandan protest and raised concerns about “the movement’s involvement with Islamic individuals”:
TigerSwan’s subcontractor Silverton maintained three security teams, based in Aberdeen, DeSmet, and Sioux Falls, to conduct roving patrols along the Dakota Access route in South Dakota. TigerSwan tailed activists and journalists in North Dakota, South Dakota, and Iowa. The September 11 situation report notes that Silverton security personnel would stage for a protest in Sioux Falls on Monday, September 12. The November 5 situation report says, “Operations were conducted to intercept Gary Tomlin, a reported free-lance reporter in the South Dakota sector.”
TigerSwan also produced counter-propaganda for ETP:
In a report dated September 7, TigerSwan agents discuss the need for a “Social Engagement Plan.” On September 22, they discuss the development of an information operations campaign run by the company’s North Carolina-based intel team and Robert Rice, who without disclosing his TigerSwan affiliation posed as “Allen Rice” in a series of amateurish videos in which he provided commentary critical of the protests. The videos, posted on the Facebook pages “Defend Iowa” and “Netizens for Progress and Justice,” were removed after The Intercept contacted TigerSwan, Rice, and the pages’ administrators for comment. None responded [Brown et al., 2017.05 27].
As a bonus, TigerSwan appears to have lied to the state of North Dakota and operated illegally, without a license:
Records from the North Dakota Private Investigation and Security Board show that TigerSwan has operated without a license in North Dakota for the entirety of the pipeline security operation, claiming in a communication with the board, “We are doing management and IT consulting for our client and doing no security work.” In September, the licensing board learned about the company’s position as a Dakota Access contractor and wrote a letter to its North Carolina headquarters requesting that it submit a license application.
TigerSwan then did so, but the board denied the application on December 19. After James Reese wrote a letter objecting to the decision, the security board’s executive director responded on January 10 that “one reason for the denial concerns your failure to respond to the Board’s request for information as to TigerSwan’s and James Reese’s activities within the State of North Dakota.” Neither TigerSwan nor the board responded to questions regarding the current status of the company’s license [Brown et al., 2017.05 27].
The Intercept documents run through May, showing that even after the clearing out of the Standing Rock protest camp and the completion of pipeline construction, TigerSwan protects its profitable contract by playing up threats to ETP’s assets. Such is one of the dangers of these mercenary firms: their profit motive may drive them to encourage clients to believe they are in a constant state of war (this should sound familiar) and continue investing in private police-state efforts that infringe on citizens’ civil liberties.