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.
- 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 kin—er, policy analysts—policy analysts to draft a bill right now to repeal everything she did wrong in this case today.
- 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.
- 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.
- 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.)