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Libertarian Party Cheers DRA/ACLU Victory as Noem Surrenders on Anti-Protest Laws

In a major admission of failure to legislate properly, Governor Kristi Noem yesterday gave up the fight for the anti-protest laws she rushed through the Legislature to protect the Keystone XL pipeline. In a settlement brokered by the American Civil Liberties Union and Robins Kaplan attorney Brendan Johnson with plaintiffs Dakota Rural Action, the Indigenous Environmental Network, the NDN Collective, the Sierra Club, Governor Noem and Attorney General Jason Ravnsborg agreed never to enforce the “riot-boosting” laws she signed last March that unconstitutionally criminalized speaking out against the harmful projects of Kristi’s Big Oil backers.

The settlement also deems the pro-speech, pro-environment plaintiffs the prevailing party, meaning the state is still on the hook for the plaintiffs’ attorney fees. If Noem and Ravnsborg don’t offer the plaintiffs reasonable payment for their trouble within ten days, the plaintiffs can submit their bills to the court and let Judge Piersol decide how much of our tax dollars Kristi and Jason just lost for us with their contempt for the Constitution.

South Dakota’s leading opposition party is quick to cheer the ACLU’s successful defense of liberty:

The Libertarian Party of South Dakota applauds the decision made by Gov. Kristi Noem and Attorney General Jason Ravnsborg to cease attempts at enforcing state laws aimed at squelching protests in the wake of the Keystone XL Pipeline demonstrations, but remains critical of them for their past efforts.

“It’s a good day for free speech, but it never should have come this far,” said Gideon Oakes, state chairman of the Libertarian Party of South Dakota. “In a free society, you don’t get to cherry pick which protests are acceptable to the government.”

The LPSD commends the ACLU of South Dakota for its work in helping to functionally gut a set of laws which were blocked by a federal court injunction last month.

“Free speech and the right to protest were deemed important enough by the founders of this country to be enshrined at the very top of the Bill of Rights,” Oakes said. “Today is a pleasant reminder that there are still checks and balances, even for a legislature as politically homogeneous as South Dakota’s” [South Dakota Libertarian Party, press release, 2019.10.24].

Of course, you’d have no idea that the ACLU and the courts just saved us from a blatant and indefensible attack on our Constitutional rights if all you read was Governor Noem’s announcement of the settlement:

Today, my team reached an agreement that will resolve the Dakota Rural Action v. Noem litigation.  If the court approves our agreement, the state can begin work to update crimes that have been on the books since South Dakota became a state. We remain focused on preserving law and order while protecting the right to free speech and peaceful assembly. It’s important to note that it is still illegal to riot in South Dakota. No one has the right to incite violence.

My team and I are continuing to work to protect people, property, and the environment, all while making sure the crimes on our books are in line with current constitutional law [Governor Kristi Noem, propaganda, 2019.10.24].

Noem utters baloney in almost every line.

  1. The state’s ability to update crimes on the books does not depend on the court’s approval; she could get to work right now drafting proposals to reform the laws that she made worse with her unconstitutional tinkering… and she could release those plans to the public weeks before Session, so we can all review and discuss them, rather than in the final days of the Session with reduced committee scrutiny. Heck, she could get one of her well-paid kiner, policy analysts—policy analysts to draft a bill right now to repeal everything she did wrong in this case today.
  2. Noem clearly doesn’t “remain focused” on protecting free speech and peaceful assembly; Judge Piersol just had to refocus her on her sworn duty to uphold the Constitution.
  3. This lawsuit wasn’t about trying to legalize riots or incitements to violence. It was about repealing Governor Noem’s effort to make it a crime to speak out against Big Oil’s predations on our land, water, and rights.
  4. If Governor Noem really were “continuing to work to protect people, property, and the environment,” she’d rip up TransCanada/TC Energy’s permit for the Keystone XL pipeline, which harms South Dakotans, their property rights, and their environment.

Gaacckk! Wash the bad taste of Kristi’s fascist evasions out of your mouth with these comments from the victorious plaintiffs, the folks who are actually fighting for your rights over the greed of foreign corporations:

Stephen Pevar, senior staff attorney with the ACLU’s Racial Justice Program: “The state’s anti-protest efforts were plainly unconstitutional. This settlement helps ensure that no one has to fear the government coming after them for exercising their First Amendment right to protest. This settlement should also serve as a lesson for other legislatures considering similar anti-protest efforts.”

Dallas Goldtooth, organizer, Indigenous Environmental Network: “South Dakota knew these laws couldn’t stand up to our legal challenge so rather than face embarrassment they decided to capitulate. We will celebrate this win, but remain vigilant against further government attempts to outlaw our right to peacefully assemble. We will fight on for the protection of the Oceti Sakowin people and the sacredness of Mother Earth with no hesitations.”

Brendan Johnson, partner with the Robins Kaplan law firm: “By equating peaceful organization and support of protest with ‘riot boosting’ and incitement to riot, the government stifled our clients’ abilities to speak out against the Keystone XL Pipeline. We’re happy that the state recognized that these vague and overbroad laws threatened the First Amendment rights of South Dakotans on every side of the issue and that, as a result of this settlement, no one’s voices will be silenced.”

Mark Winegar, South Dakota chairman, Sierra Club:  “We’re glad the state has backed down in its oppressive attempts to criminalize free speech. These laws clearly represented an unconstitutional attack on South Dakotans’ right to peaceful protest, and it’s a relief to know that they’ll never be enforced.”

Nick Tilsen, president and CEO, NDN Collective: “The ‘riot boosting’ act was an insult to the Constitution and an attempt to muzzle the voices of the people and our movement to defend Mother Earth. This settlement accomplishes everything that we set out do with the lawsuit and makes the temporary injunction a permanent one. Onward, we will continue to fight for air, land, water and our rights.”

John Harter, board chair, Dakota Rural Action: “Gov. Noem and Attorney General Ravnsborg settled this case because they are clearly in the wrong – something they and the Legislature were warned of as they rushed to pass this unconstitutional law. In fact, the whole process of pushing pipelines through this state – from the use of eminent domain to benefit a foreign corporation, to cracking down on citizens protecting the land and water – violates our constitution and leaves taxpayers, once again, to foot the bill. We are proud to have stood alongside our Native allies to fight for the rights of all South Dakotans, and we thank the ACLU for their work on this crucial case” [American Civil Liberties Union, press release via Common Dreams, 2019.10.24].

If Judge Piersol okays this settlement, Governor Noem and Attorney General Ravnsborg will have seven days to deliver this settlement to every state’s attorney in South Dakota, making clear that they are not to enforce Kristi’s bad laws. (Seven days, Jason, seven—that’s one whole hand and two more.)

22 Comments

  1. Donald Pay 2019-10-25

    Here’s the current statute on felony riot:

    22-10-1. Riot–Felony. Any use of force or violence or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons, acting together and without authority of law, is riot. Riot is a Class 4 felony.

    “Riots” would include all Friday night and Saturday afternoon football games, after-school scuffles between teen boys and many a late night bar fight. This statute is ridiculous. Of course, prosecutors seem to have some discretion in how it is applied, and that, really, can be a problem. In reality the State only charges Indians using their Constitutional rights in a protest that escalates to three people throwing punches, not the lilly white frat boys who throw a drunken party that escalates to three people throwing punches. Same offense, vastly different charges. One for the white elite, one for everyone else.

    And then there’s the “police riot” that goes uncharged because they cover up their illegality with a get-out-of-jail card right there in the statute: because they riot with the authority of the law, they don’t get charged. I guess a prosecutor could charge the police with “riot,” but that phrase, “without authority of law,” presents a pretty steep hurdle.

    Now here’s what I see as a real problem: goon squads. Private security has no business interfering in the Constitutional rights of citizens. If a few people decide to have a sit down strike, where they are technically trespassing, similar to what the Republican Congressmen did in the SCIF, private security has no business interfering. If these goons as much as touch a sit down protestor, those folks should be arrested. I assume the civil disobedience of the protestors will also result in arrest, but there is a way to do this that doesn’t escalate matters.

    As I said before, most larger cities deal with protests every few days. They don’t have a major freak out, as Noem did, and go off half-cocked, passing stupid and unconstitutional laws. If there is good planning and professional policing you can make sure protests are safe, even those where civil disobedience comes into play. She would be wise to begin to train law enforcement authorities in her state in these de-escalation techniques. If she were an American, rather than an acolyte of the Russian asset in the White House, she would understand the place of protest in our history, and prize the rights of those who have the courage to stand up for their beliefs.

  2. Mark 2019-10-25

    We are sorry to inform you that the rides
    in Kristyland will be closed this weekend
    while our staff reads the Constitution.
    JASON …..Pay attention.

  3. bearcreekbat 2019-10-25

    The manner in which this proposed settlement has been explained, namely Noem and Ravnsborg agree not to enforce the statute, seems to fall short. If the statute remains on the books what is there to stop a rogue States Attorney/Sheriff/deputy who might disgree with the Ravnsborg and Noem capitulation (e.g., sort of a bizzaro world Vargo type SA) from relying on the written law to arrest someone? Indeed, even non-law enforcement, such as a member of the “goon squad” private security mentioned by Donald, would seem to be able to make a so-called “citizen’s arrest” as long as the statute remains on the books unenjoined.

    https://www.youtube.com/watch?v=9efgLHgsBmM

    Perhaps a permanent injuction against anyone attempting to enforce the statute would be a bit more effective. Otherwise, the cost of defending against such an arrest and prosecution and being required to revisit the same arguments made in federal court in a state court criminal prosecution where the prosecutor relies on the separate sovereigns doctrine, and lack of statewide injunction, would seem to have a chilling effect on the exercise of the speech in question.

  4. Debbo 2019-10-25

    BCB, I didn’t like that agreement to pretend the stupid “riot boosting law isn’t really there. It needs to be completely repealed.

    The news releases by the winners are very well done. Kudos to each one of them. NoMa’am’s is gobbledygook. Can’t really even tell what she’s talking about. I guess it’s written in Soreloserese.

  5. Donald Pay 2019-10-26

    If you want to know the truth, there are quite a few statutes on the books that aren’t enforced or used or used properly. Open records and open meetings statutes lead the list. Largely, they are just for show. South Dakota has some decent environmental statutes, but do you think they are applied? Hell, no, they aren’t. You think South Dakota authorities care about the environment? They are there on the books because without them South Dakota doesn’t qualify for money from the EPA. Money is what they care about. Anyone heard of alienation of affection laws? An anachronistic concept if ever there was one. Generally the criminal code is cleaned up more, and the dead statutes are wiped out. Let’s see if the legislative outlaws decide to do the right thing and repeal those dead riot boosting laws next session.

    From time to time these dead laws do get repealed. It has often occurred in 100+ page bills that violate the “one subject” clause of the Constitution. They can’t even follow the law when they are cleaning up the law books. Because few people read those bills, they stuff actually good statutes in there that they want to get rid of, but try to hide and not talk about. Read those bills cover to cover.

    Government in South Dakota is run by outlaws, as is the current federal government. They don’t care what the law says, they’ll do what they want until someone in a black robe smacks them down.

  6. A 2019-10-27

    This was HB 189. It’s companion bill, HB 1089, is still (de)regulating SD college campuses and endangering students. The members of the state legislature that stood for student safety and voted against HB 1089 noted that it would allow a re-enactment of a lynching of an effigy to occur on campus, and the only repercussions would be that such an incident would be noted in an annual report to the BOR. Such acts are uniquely positioned to threaten violence against and silence anyone that condemns white supremacy.

    That said, USD Law is happily hosting a litigator from FIRE this Wednesday. FIRE is an organization that lobbied for HB 1089 and seeks long term litigation against public universities such as USD under the guise of free speech. HB 1089 stands to drain SD taxpayers and students through expensive litigation if schools attempt to denounce violent white supremacists. No room for well-reasoned academic arguments when the political passions dominate.

    Greg Lukianoff dubs this trend “unlearning liberty.” Furthermore, Michael C. Behrent quotes political philosopherJeremy Waldron, noting: “Utterances that directly threaten inclusiveness are not simply, as First Amendment purists maintain, ‘thought we hate’ but a calculated ‘disfiguring of our social environment’ through messages conveying that ‘in the opinion of one group . . . members of another group are not worthy of equal citizenship.'”
    https://www.aaup.org/article/tale-two-arguments-about-free-speech-campus#.XbXAzhivDZG

  7. JW 2019-10-27

    I wouldn’t consider this a win in the least. A promise to refrain from enforcing statute law is about as shallow and disingenuous as it gets. The woman has no power to control the behavior of county sheriffs and local law enforcement and she shouldn’t have any ability what so ever to manage the affairs of state law enforcement since they are, in principle, officers of the court, not the executive branch. Neither should Ravansborgs Office. Discretionary enforcement of law should come entirely from the rank and file enforcement people and then be referred to local prosecutors for discretionary prosecution; which is also in their power, not the governors….. Aside from cost considerations, this suit should have gone all the way to a supreme court decision of unconstitutionality. That is the only guarantee that these laws won’t be punitively applied in any jurisdiction apart from the governor’s office. Just another display of autocratic slight of hand.

  8. Cory Allen Heidelberger Post author | 2019-10-28

    BCB and JW are rightly suspicious. We shouldn’t trust Kristi and Jason any farther than we can kick them. Still, the ACLU, Brendan Johnson, and plaintiffs aren’t knuckleheads: if they thought this settlement didn’t achieve their ends, they wouldn’t take it.

    Notice that the settlement gives Judge Piersol enforcement power, gives the state 24 hours to reverse any violation of the settlement, and requires the state to pay plaintiffs attorney fees each time plaintiffs have to challenge a law enforcement action blocked by this settlement. With those conditions, isn’t this settlement as binding as a permanent injunction?

  9. Cory Allen Heidelberger Post author | 2019-10-28

    Donald, isn’t “cleaning up the law books” one subject? :-D

  10. bearcreekbat 2019-10-28

    I do note that the stipulation obligates the named Defendants to provide notice of the non-enforcement agreement to all SD States Attorneys and ask the States Attorneys to notify locaL law enforcement officials (but nothing required for notice to rent-a-cops and other mercenaries groups nor the to general public) of the Defendants’ settlement promises and obligations.

    Yet I still wonder why Plaintiffs did not insist on a judicial declaration that the statutes in question are unconstitutional along with statewide injunction against any enforcement of the statute. I know from experience that one doesn’t have to be a “knucklehead” to have an overly optomistic view of the potential benefits from a settlement language.

    I also noticed from the caption of the settlement document that this does not appear to be a class action. If that is the case, wouldn’t the only people protected by the settlement be the named Plaintiffs? In other words, if you were not a named Plaintiff in the lawsuit and were arrested for riot-boosting would this agreement even provide a defense in State court?

    And the lack of a certified class of Plaintiffs guides the ethical obligations of Plaintiff’s counsel. If this is not a class action then the attorneys owe no duty to the public. As long as counsel concludes this settlement is in the best interests of their named clients the attorneys have a duty to support it and are not ethically permitted to worry about whether the settlement agreements protects anyone else.

    If I were Judge Piersol these would be some of the questions and concerns I would want addressed before approving any settlement of a case this this that challenged criminal statutes that appear to transgress First Amendment rights.

  11. Cory Allen Heidelberger Post author | 2019-10-28

    Good points, Bearcreekbat, especially about the absence of class-action status. If your analysis is correct, am I still covered, since I’m a member of Dakota Rural Action?

  12. bearcreekbat 2019-10-28

    Cory, I can’t say for sure without more info, and despite the apparent cliché, as always “it depends” on the circumstances. Nevertheless, since DRA is a party to the settlement I would guess that you have a stronger defense to any enforcement actions directed by by Noem or Ravnsborg or their designees due to your membership than non-members.

  13. JW 2019-10-28

    Seems to me this is a money-saving issue for DRA etc I like BCB’s analysis. The absence of Class Action status is noteworthy. Maybe any future litigants should join DRA just to be on the safe side. Notification down the chain to SA’s and Enforcement Agencies is just that; notification that the state has agreed to the “no action” alternative. It’s a notification, not a cease and desist order. I still maintain that nothing in the agreement forestalls a County Sheriff in Harding County, as an example, from rounding up a posse and tossing protestors in jail. This whole thing reminds me of the divisive debate about the Open Fields Doctrine several years back; incentivized by Betty Olson and her gang of T-Party patriots…. Seems to me this isn’t as binding as it should be. The fact remains that these laws remain fully in place and actionable at some future date. The agreement will be just a minor inconvenience to be settled in the state’s favor before prosecutions begin. This state has always preserved bad law for application at a later date just so the legislature and politicians can save face. I have no faith that Noem and Ravansborg don’t have some thought up their collective sleeve to mitigate this agreement or buy some time to modify the current statutes in a way that move’s around the agreements. They know Keystone is about a year away and there is no doubt in my mind that these folks are in back channel communication with a few neredowells to craft more schemes. Trust…….. I haven’t trusted a republican administration since Mickelson.

  14. JW 2019-10-30

    Indeed, the latest news release from the RCJ indicates that Noem and company plan on revisiting the laws and tweeking the language that suggests unconstitutionality… Will this be a governor sponsored bill or one that rises out of senatorial sponsorship? No matter, the language changes may be “constitutional” to the far rightists in the legislature and governors office but there is no guarantee that they’ll withstand another DRA challenge or even a red faced test… Distrust still remains. There is no way anybody should accept this maneuvering as either genuine or credible.

  15. Debbo 2019-10-30

    Thanks for the info JW. Not surprised. I’m in complete agreement with your last sentence.

  16. Cory Allen Heidelberger Post author | 2019-10-30

    JW, I’m sure Kristi will hurry to put some new version of the law before lawmakers and demand immediate action, just like the last one. She can’t keep her TransCanada/TC Energy backers waiting. She’ll do just enough to force DRA and the Indigenous plaintiffs to spend time and money in court again as the KXL bulldozers start to roll.

    As I think about it, much as I enjoy technicalities, I find myself worrying less about the class-action-less issue. Kristi knows she lost this case. She knows the same law applied to anyone else will also fail judicial scrutiny and cost the state more money. She won’t enforce the current statute; she’ll push for an emergency amendment, immediately implemented this winter, inviting a new court challenge.

  17. grudznick 2019-10-30

    Mr. Pay is likely referring to how the South Dakota Deep State (SDDS) runs the show behind the scenes. He is indeed correct. grudznick knows many of the fellows who act in a semi-coordinated manner to manipulate the directions of the governments in South Dakota, and they are fine fellows indeed. I expect Mr. Pay knows some of them as well.

  18. Porter Lansing 2019-10-30

    That’s not Deep State, grudz. Deep State works behind the scenes to foil government. Comfort the afflicted and afflict the comfortable. What you’re talking about is skunk breathed, lobbyists. Closest thing in SD to Deep State is Dakota Free Press.

  19. grudznick 2019-10-30

    The SDDS comforts themselves when they are afflicted. Many in the SDDS are grotesques, and afflicted largely.

    Perhaps I should clarify, for Mr. Lansing’s sake, that grudznick is referring to the Regular SDDS, or R-SDDS. Not the Alt-Left deep state, which is a handful of bloggers.

  20. Porter Lansing 2019-10-30

    There is no regular SDDS. SD government is fully one sided. Deep State works to stop things from going under Noem’s rug and stop goon squads from beating Indians protesting in peaceful ways. Everything lobbyist swine work to stop. e.g. When Cory beat SD Republicans in court.
    There is no Deep State in South Dakota because there’s never been a significant population of minority party government workers.

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