South Dakota isn’t the only place where pipeliners are pushing protest aside with broad and disproportionate penalties. Indiana just passed a bill purporting to protect “critical infrastructure facilities,” including pipelines, refineries, crude oil exploration and production equipment, power plants, dams, communication towers, and paper and drug factories. Yet like the Noem/TransCanada anti-protest bill, this rushed Indiana legislation appears designed to chill free speech by criminalizing peaceful protest:
New language would make organizations or individuals liable and responsible — and subject to harsh fines and potential lawsuits — if someone at a protest they organize or even just participate in commits one of the above crimes. The fine for “conspirators,” as termed in the bill: $100,000.
[Bill sponsor Rep. Ed] Soliday said there needs to be some sort of evidence that the organization encouraged the behavior, adding that “If I misbehave and there is no evidence they’ve encouraged misbehavior, that’s not a reason to find they are guilty.”
But the question for organizations such as CAC, the Sierra Club and others is what counts as encouragement?
“Is it an organization that supports the same goals as the protester? A group that posts a Facebook event for a protest? The law doesn’t say,” he [unclear attribution: maybe Kerwin Olson of Citizens Action Coalition?] said. “It creates an open door to arrest anybody for anything, which is exactly what you want if you’re Goliath trying to crush David’s dissent” [Sarah Bowman, “This Indiana Bill Is Meant to Protect Pipelines. Critics Say It Infringes on Free Speech,” Indy Star, 2019.03.10].
The Beltway-based Institute for Free Speech (which was part of the motley crew that won a big victory for the First Amendment by repealing IM 24 in court yesterday) doesn’t like the smell of Indiana’s anti-protest law. Their president, David Keating, wrote to the Indiana Legislature to try to get them to back down from this attack on free speech and association. His letter puts laws like Indiana’s (and South Dakota’s!) in perspective by asking what will happen when liberals like me become your next governor and use the law to protect their favored institutions from cranky conservative critics:
When laws that regulate speech or associations are vague, they can do serious harm to free speech. Consider the vague regulations interpreted by the IRS’s Lois Lerner. Those vague IRS regulations played a significant role in the IRS scandal, where Tea Party and conservative organizations were targeted for special scrutiny that delayed their applications for tax-exempt status.
Imagine a more liberal state that supports abortion adopting the language in S.B. 471, but substituted the phrase “critical women’s health facility” (meaning that it provides abortions) for “critical infrastructure facility.” Relatively trivial violations by pro-life activists might well lead to intrusive investigations and even serious criminal penalties. Investigations might be launched against pro-life organizations in an attempt to shut them down or bankrupt them. Even if the organizations eventually escaped financial sanctions, their legal defense costs could prove ruinous.
Yet such an assault on the free speech and associational rights of environmental or other groups that might have concerns about facilities covered by this proposal would be possible under S.B. 471, if it becomes law [David Keating, “Concerns with and Suggested Fixes to Indiana S.B. 471,” Instiute for Free Speech, 2019.03.18].
Governing to favor special interests ignores the possibility that your special interests won’t always enjoy the privilege of majority in government. One must always govern with an empathetic eye to the minority that at any moment one may become. Corporate-fascist laws that purport to protect pipelines from “terrorists” can boomerang on any group that might find itself on the short end of the electoral stick. The Bill of Rights exists to prevent such abuses of rights. Indiana’s and South Dakota’s erosion of the Bill of Rights in favor of our corporate overlords bodes ill for all of us.