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Judge Suspends Noem’s Pro-Keystone XL Riot-Boosting Law

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.


  1. Debbo 2019-09-18

    So how many lawsuits have Gov NoMa’am and AG Ravsbutt lost so far? And how much tax payer $ have they wasted?

    Let’s see, that $ could have gone to repairing flood damage, schools, helping farmers cope with Economic Eunuch’s trade war fiasco, etc. Instead, NoMa’am and Ravsbutt have just flushed it down the drain. Typical GOP $ management.

  2. jerry 2019-09-18

    GNOem is Chubby trumpy in a dress, what a couple of duds. Chubby just got through proclaiming that American auto industry cannot compete with the Asian and European models in fuel efficiency so we are dropping those requirements that California and other smart states had put into place. We must keep the corporate welfare for big oil or we will just fall even further into the savage world of following those that can do the job.

    As soon as Keystone is pumping poison, Desoto’s will be back on the road. Ah the days when America was great again. Put 40,000 miles on the clunker and it was time for the junk heap. Looks like those are the days Chubby and GNOem want back.

  3. Eve Fisher 2019-09-19

    “Sending a supporting email or a letter to the editor in support of a protest is encouraging. Giving a cup of coffee or a thumbs up or $10 to protesters is encouraging the protesters. Holding up a sign in protest on a street corner is encouraging. Asking someone to protest is soliciting,” Piersol wrote, pointed out that Martin Luther King Jr. would have been liable for “riot boosting” under South Dakota’s law for writing his “Letter from Birmingham Jail.”

    Of course, that might have been our legislature’s idea: put an end to First Amendment protest rights because they’re too dangerous to certain corporate interests. Meanwhile, of course, none of them would ever even consider any limitations on carrying – openly or concealed – any weapon anywhere, because that would violate the 2nd Amendment, which is absolutely the most important amendment the Founding Fathers ever wrote, bar none.
    Thank God for Judge Piersol.

  4. Donald Pay 2019-09-19

    All you rioteres out there, I direct you to stop the Keystone Pipeline. I’m just wondering what “directing” means. Is it defined in the statute? Did Piersol clarify what “directing” means? Maybe that will come later.

    If I say, “Sit down over there and don’t move,” and “over there” is directly in front of a construction operation, and the goons decide to clear that area, and someone refuses to move, and the goons get a little rough, and the guy throws a punch, and the goons beat him with billy clubs, and others come to his aid, did I “direct” this “riot?”

    If there is pre-planning at some meeting beforehand where people are instructed in how to riot, I can see this as “directing.” I’ve been involved in a few sit down protests, a strike and many marches and I’ve never seen any folks “directing” anything close to rioting. Any organization that happens is generally to prevent violence or rioting, and to obey the law. Some splitter groups may want to press non-violent disobedience, but if you have a well-trained police force, these incidents rarely escalate to rioting.

    Noem’s approach seems to forget about what she can control: having a disciplined police force that is trained in how to de-escalate situations like this. She can’t really control what the Keystone opponents will do. They have a right to protest, and some will be civilly disobedient. That is an American institution since Boston area residents appropriated Indian wardrobes to dump British Tea. We call them heros today, but back then some of them were “riot boosters,” at least in the British view. If some real Indians along with some white allies decide to engage in similar civil disobedience over Keystone, it’s in the American tradition, and should be honored as such.

  5. Robert McTaggart 2019-09-19

    Those protesting the pipeline also have the opportunity to not use gasoline to power their transportation needs. This includes (but is not limited to) powering an electric vehicle with clean electricity.

    And just because the Trump Administration is considering lower federal mpg standards than California would like, does not mean you must buy a car with worse gas mileage.

  6. mike from iowa 2019-09-19

    The beauty of America is protesters have every right to drive gas guzzling vehicles to pipeline protests because they are free to choose. They can drive solar powered vehicles or even bikes or ride horses for that matter.

  7. Robert McTaggart 2019-09-19

    You are also free to believe that climate change is not real, if you are going down that road.

    You don’t have to wait for a protest to take action to reduce your own footprint.

  8. Donald Pay 2019-09-19

    To answer Dr. McT, let’s hear from Karl Marx: “Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.” KARL MARX, The Eighteenth Brumaire of Louis Bonaparte.

    People will protest by coming in whatever manner is available to them. If the Keystone Pipeline is halted, the amount of greenhouse gases not produced will be decreased overall, far surpassing that produced by vehicles transporting protestors to the site. People can also buy various offsets. I do so.

  9. Robert McTaggart 2019-09-19

    The carbon footprint probably will not go down when you shut down a pipeline. In fact, if they have to deliver more oil by truck instead of pipeline, the total carbon released would go up, would it not?

    Why? Because I don’t expect our demand for energy to go down just because you remove a pipeline. People still have their cars that they have paid a lot of money for. And now they will be paying more for the same gasoline.

    You are assuming that people will be happy to go without or use less. That message is not going to win elections. Better to provide all of the clean energy that people want whenever people want it, so that there is a better available option for gasoline. That means renewables + nuclear, and whatever storage and carbon capture can muster.

    Sorry, buying offsets still allows the carbon to be emitted….you just feel better about emitting your carbon by subsidizing a wind farm. Carbon taxes that are collected and then not spent on clean energy infrastructure do not solve the problem of emitting carbon.

    “Those are my principles. If you don’t like them, I have others.” — Groucho Marx

  10. Robert McTaggart 2019-09-19

    The best way to convince non-protestors that going off fossil fuels is possible is to lead by example. Travel to and from any protest without using fossil fuels, and then just don’t use fossil fuels during said protest.

    Show that it works, it is convenient, and you save money. And oh by the way, the air is cleaner.

    The current approach is like a doctor who smokes three packs a day telling you that we all need to stop smoking.

  11. jerry 2019-09-19

    Doc must be in the bag again. Kinda early, but such as it is. Party on dude.

  12. Robert McTaggart 2019-09-19

    So you are saying that consuming fossil fuels in the name of not consuming fossil fuels is perfectly logical.

    Party on dude.

  13. Eve Fisher 2019-09-19

    Our First Amendment right to protest has nothing to do with whether we are correct or incorrect, our cause is fixable or unfixable, or who’s in power or who isn’t. Whether the protests would stop the pipeline or not, and whether stopping the pipeline is possible or not, has NOTHING to do with my right to protest it, if I so choose.

  14. Robert McTaggart 2019-09-19

    You can use your freedom of speech to express your opinions.

    Whether you can convince others of your arguments is another matter.

    The doctor who is smoking 3 packs a day is telling you the truth…you should really stop smoking. But he/she should stop smoking as well.

  15. jerry 2019-09-19

    Amazon gets it. Who cares what you think doc or what I think, the money does the thinking.

    “Jeff Bezos said Amazon has ordered 100,000 electric delivery vehicles from start-up Rivian Automotive in a push to make the company’s fleet run entirely on renewable energy.

    The order which was confirmed via tweet by David Clark, Amazon’s senior vice president of operations, is the largest order for electric delivery vehicles to date.”

    Booyah, that’s a whole lot of vehicles that we don’t need no Keystone for. Chubby just got his arse handed to him by Iran so now we are gonna go back to what Obama did. I sure miss that guy.

  16. Robert McTaggart 2019-09-19

    Now all they have to do is figure out what to do with the batteries when they need to be replaced.

    It would be nice if there were a plan for that prior to purchasing 100,000 batteries.

  17. Donald Pay 2019-09-19

    Hey, if it were up to me I’d let the roads go back to nature, Dr. McT, and none of the protestors would be able to get there. That would be fine, since neither could the people building the pipeline. In my world there would be no “need” for any power, except renewable energy (wind and solar). It ain’t my world, Dr. McT. I and you and everyone else get to play by the rules the elite have made for us.

    Marx was correct on this point, if he fell down in other areas. I’m sure everyone would love to take their energy free hover craft to the pipeline protest, but, golly, the physicists have fallen down on the job, too. But you can make up for it. I have put you, Dr. McT, in charge of lining up the mass transportation in low green house gas vehicles for the multitudes who are going to protest. Also, you are in charge of making sure the government authorities and those who are constructing the pipeline abides by the same rules. I’m glad you are willing to put yourself on the line for the betterment of us all.

    Lead by example, Dr. McT.

  18. Robert McTaggart 2019-09-19

    Great, all I need is to stop the nuclear waste impasse so we can get on with generating enough nuclear power to recharge all of those batteries.

    Since I am leading, I will put you in charge of that task Donald. Get it done.

  19. Robert McTaggart 2019-09-19

    I think you are under the mistaken impression that just because you think physics should work a certain way, that it actually works the way that you want it to.

    Yes, physics and engineering and chemistry require creativity and new approaches (if not other skills from the liberal arts) but there are constraints set up by natural laws that have to be honored.

    Thus there is a problem with the all-wind, all-solar approach. The wind and sun seem abundant, but they are not energy dense, and they do not occur whenever you want. I think that is the physics you need to reconcile with first. Your energy plan has to deliver the energy that people want, when people want it, without emitting carbon.

    For me, that does not mean no renewables, but it certainly means more nuclear energy.

    The good news is that you don’t have to use energy. But if you want to go anywhere or do anything, you will want access to energy on your terms.

    News flash….we have to solve climate change whether or not we are able to solve energy storage or carbon capture. Let’s do renewables and nuclear and solve this thing. As better solutions come along, use them.

  20. jerry 2019-09-19

    Nope, the problem is the grid. China figured it out and we are still looking at our belly buttons. If only there were people who could understand science in the United States..

  21. Robert McTaggart 2019-09-19

    Cory Booker has compared the anti-nuclear democrats to the climate-change-denying republicans.

    You would think that if it were an actual crisis (cough, cough) that we would need all the science we could get to solve the problem…including nuclear science.

  22. jerry 2019-09-19

    Maybe if we sent students to China for the education that Chinese students got here, we could then advance our home civilization. We seem to be only interested in the military industrial complex that was just proven to be a sham in the sand box of the Middle East. Who would’ve thunk it, trillions of dollars spent to further the protection of fossil fuels only to now discover that those protections are flawed by drones flown from someone’s barn. A million bucks on drones to defeat trillions in gadgetry . Life is funny like that.

  23. jerry 2019-09-19

    Cory Booker is a hack that has been Wall Street’s home boy since he was mayor of Newark. Cory Booker is a senator, that is all.

  24. jerry 2019-09-19

    Who said I am a Democrat? Haven’t you heard, we all need to camouflage and drink kool aid. We are all just liberal Republicans now.

  25. Robert McTaggart 2019-09-19

    I agree that we should have alternatives to fossil fuels. But the solution is not to go without energy.

    There is good news and bad news in having a trade relationship. On one hand, we are dependent on items for us to use energy. On the other hand, they are dependent on us to purchase said items.

    Good news jerry. We would also be beholden to foreign interests, including China, for our wind turbines, solar cells, and batteries.

  26. leslie 2019-09-19

    There is no question jason, jeffers and even barr have competent staff lawyers. So does trump. Makes no difference to this Republican party.

  27. leslie 2019-09-19

    Leading climate scientist
    James Hansen has been publicly speaking about climate change since 1988. The NASA climatologist testified to Congress that year and he’s been testifying ever since to crowds large and small.***Congressional Research Service estimates that tar sands oil results in at least 14 percent more greenhouse gas emissions than do more conventional crude oil.***
    A true price on carbon, one that incorporates all the damages that could be inflicted by catastrophic climate change, is exactly what Hansen believes is needed to ensure that more fossil fuels, like the tar sands, stay buried. SciAmer 1.23.13

    Petcoke in the tar sands is turning American refineries into coal factories.
    There is 24 percent more CO2 embedded in a barrel of tar sands bitumen than in crude oil. The largest global petcoke trader in the world is Florida based Oxbow Corporation, owned by William Koch – the brother of Charles and David Koch. The third undead Koch brother! 1.13.13. Kochs recently sold some tar sands holdings in Alberta for strategic reasons.

    So Doc, you riding your bike to work now?

  28. Robert McTaggart 2019-09-19

    I have tried riding my bike into work, but I didn’t feel safe doing so. I walk when I don’t have to drive. Too many try to drive and park in different lots when the buildings are within walking distance.

    And I am planting trees and flowers. You’re welcome. Been a lot of local talk about how the Colorado Blue Spruce is not doing well in our climate. It is not like they are being wiped out, but a lot of them were planted at the same time and the older trees tend to have problems after a few decades.

    FYI, James Hansen is in favor of nuclear with renewables as well.

    “…four of the world’s top climate scientists, Dr. James Hansen, Dr. Tom Wigley, Dr. Ken Caldeira and Dr. Kerry Emanuel, have shown that renewables alone cannot meet the goal of decarbonizing the world economy.

    The four scientists outlined how only a combined strategy of employing all the major sustainable clean energy options, including renewables and nuclear, and efficiency and conservation, can prevent the worst effects of climate change by the end of this century.”

  29. Robert McTaggart 2019-09-19

    Given that the green ash and the elm are not favored any more (although there are varieties of elm available that are resistant to dutch elm), it is harder to find a tree that is best for the site and has the characteristics you want.

    At the moment, I tend to favor alternatives like Kentucky Coffee Tree, Ginkgo (male only), Hackberry (very tough tree…fine as long as the gall doesn’t bother you), Meyer Spruce, Siberian Larch and the Pin Oak. Maples depend on the tree and the site. The hawthorns and the honey locusts are good depending on the site/location. Then there are a series of shrubs that give you the fall color and some kind of fruit to feed the birds.

  30. leslie 2019-09-20

    My point is that you wont hear hansen spouting meaningless arguments you clutter up the blog with, anon, anon.

    Not taking a vehicle to a pipeline protest is unsafe.

    JFC! :)

  31. Robert McTaggart 2019-09-20

    I am not trying to convince anybody by driving an efficient vehicle or riding a bike. You are not trying to convince the protestors.

    You are trying to convince people who are not protesting. That is my point. Or at least you should be trying to convince non-protestors in order to get things done.

    If you can show that the protest can work without needing fossil fuels (either at the protest or getting to the protest), that strengthens your argument in my opinion.

    If you cannot, that says that we are not ready nor willing for an actual transition. Either such a transition is not economically feasible for you, or the technology does not exist or is not ready yet.

    If you want to drive to the protest in a big ole SUV and give everybody a hug and a high five, go right ahead. It proves that you want a transition to occur, not that fossil fuels are no longer necessary.

  32. Robert McTaggart 2019-09-20

    I agree that driving in a vehicle or a bus or a truck is safer than walking or riding a bike or riding a horse to a protest. But it demonstrates the need for gasoline or diesel to get there.

    If it were feasible (i.e. you can afford it and/or you can easily recharge the vehicle), then you could travel in an electric vehicle and be safe too.

    If you use gasoline to fulfill your transportation needs, then the approach should be to transport it safely and use it efficiently.

  33. Donald Pay 2019-09-20

    Today we have the Students’ Climate Strike and March here in Madison, WI. Most are marching from their high schools, and that may mean a 10 mile hike. The students have organized mass transportation to their event from area schools for those not marching. Some will be traveling to the event by city bus. Many of the buses are electric. This city is progressive when it comes to mass transit and reducing greenhouse gases, but the students are asking for even faster progress. As Dr. McT goes about his effort to organize the low greenhouse gas transportation for the Keystone protests, perhaps he might want to start by getting advise from the students around this country who are doing a great job living their values.

  34. Robert McTaggart 2019-09-20

    You made my point. The 10 mile hike makes a bigger impact.

    The kids get it.

  35. Robert McTaggart 2019-09-20

    And as soon as Donald organizes the effort to finally solve the nuclear waste impasse, we can power those electric buses with 100% clean energy.

    But for now, they will be partially powered by coal and natural gas. Technically those are also forms of stored solar energy….they have just been stored for a couple hundred million years or so!

  36. clara hart 2019-09-21

    I remember Axtell Park Middle School went on a strike against the US entering the Gulf war.
    Where are the students at Lincoln High School who spoke out against the Potty Bill?
    No students felt like joining their counterparts around the globe to strike in order to SAVE our VULNERABLE PLANET?

  37. mike from iowa 2019-09-22

    Steelworkers and coalo miners are finally getting it, Drumpf and Moscow Mitch, Putin’s B#tch, lied to them and suckered them into voting for their own demise.

    Good news for the coal miners, at least, they can sleep sound knowing Drumpf allows them to once again drink water full of coal ash and who knows what carcinogens. Drumpf declares the end of black lung disease because cancer and overdosing on opioids has replaced BLD as the top killers of Appalachians.

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