Listening to South Dakota Public Radio this evening, I got the impression that the lead story in the suit against Governor Kristi Noem’s rushed, speech-chilling, pro-pipeline anti-protest law (see 2019 SB 189) was that the judge had narrowed the suit by telling the ACLU and other defenders of the planet that they couldn’t sue Pennington County Sheriff Kevin Thom.
ACLU lawyer Stephen Pevar shrugged at that minor point, and rightly so: in a separate ruling, Judge Lawrence Piersol delivered the state and its feckless Attorney General Jason Ravnsborg another embarrassing blow by blocking application and enforcement of Noem’s “riot-boosting” law.
In this afternoon’s order, Judge Piersol says, sure, the state has an interest in busting genuine rioters. However, Noem’s “riot-boosting” laws “go far beyond that appropriate interest and… do impinge upon protected speech and other expressive activity as well as the right of association.” Furthermore, Judge Piersol concludes the laws “go beyond what is essential” to punish violent rioters.
Gee, Republican legislators: if you hadn’t been in such a hurry to sit up and bark for Kristi and Canada’s Keystone XL pipeliners, if you had actually listened to the South Dakotans who showed up on deliberately short notice to explain what was wrong with Noem’s anti-free-speech bills, you might have recognized that Noem’s proposals would fail Constitutional scrutiny. But I guess you prefer losing in court….
Governor Noem sought to criminalize as “riot-boosting” not just participating in a riot but directing, advising, encouraging, or soliciting others who participate in a riot and commit acts of force or violence. Judge Piersol took a close look at those four verbs—direct, advise, encourage, solicit—and found that while directing rioters is naughty, advising, encouraging, and soliciting do not involve control and thus “involve expressive activity of many kinds, expressive activity that is protected speech.” To support his conclusion that Noem’s statute is overbroad, Judge Piersol provides examples that answer the questions Noem’s chief lobbyist Matt McCaulley would not answer about the genuine chilling impact of her riot-boosting law:
Sending a supporting email or a letter to the editor in support of a protest is encouraging. Giving a cup of coffee or thumbs up or $10 to protestors is encouraging the protestors. Holding up a sign in protest on a street corner is encouraging. Asking someone to protest is soliciting. Asking someone for $10 to support protesting is soliciting. Suggesting that the protest sign be bigger is advising. The possible violations of those felony or damage creating statutes against advising, encouraging, or soliciting goes on and on. Encouragement, advice or solicitation for the protest on social media would be a fertile ground for damages or charges or both. And each of the examples involve protected speech or expressive activity [Judge Lawrence Piersol, Order, Dakota Rural Action v. Noem, 2019.09.18, p. 11].
Judge Piersol concludes further that Governor Noem would have slapped Dr. Martin Luther King with felony “riot-boosting” for writing his famed “Letter from Birmingham jail” for “soliciting, advising or encouraging another person to break the law.”
Judge Piersol does Governor Noem and the Legislature a small favor by manufacturing a severability clause for them and letting stand the prohibition on directing rioters. But Judge Piersol enjoins punishment of their advisors, encouragers, and solicitors, based on his conclusion that the plaintiffs will likely prevail on the merits, that the plaintiffs face “clear and substantial” irreparable harm, the state faces no harm in losing the chance to enforce a statute that it hasn’t used once since its “emergency” enactment in March, and the public interest in protecting those who exercise basic constitutional rights to speech and association from immediate and financially crushing punishment outweighs the interest in preventing the entirely speculative costs to taxpayers counties that might see protests.
I’m tempted to thank the people of South Dakota for electing an Attorney General who can’t win an argument. However, I have a feeling that even the great Randy Seiler couldn’t have saved Kristi Noem’s riot-boosting law from the rigorous Constitutional scrutiny that dismantled it today.