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Pink Slime, Black Snake: Could Agricultural Anti-Disparagement Law Offer Model for Noem’s Riot-Boosting Redux?

I’m just trying to be helpful….

Governor Kristi Noem tried suppressing protest against her foreign Big Oil pals‘ Keystone XL pipeline and got beat in court. Ever more concerned about corporations than Constitutional rights, Noem plans to try again with some sort of anti-“riot boosting” legislation.

If Governor Noem really wants to shut down Keystone XL protests without ending up losing in court again, maybe she should look to South Dakota’s agricultural anti-disparagement laws. Under South Dakota law, if anyone “disparages” agricultural food products, the food producer can sue for damages. The aggrieved producer must sue within one year of the disparagement, but if the producer can demonstrate the disparager intended to harm the producer, the court can award treble damages.

Now to trigger this law, the disparagement can’t just be negative talk about Mom’s cooking. The disparager must speak publicly, know the statement is false, and “state[] or impl[y] that an agricultural good product is not safe for consumption by the public or that generally accepted agricultural and management practices make agricultural food products unsafe for consumption by the public.” You’d think that definition would protect factual statements, but it didn’t stop Dakota Dunes-based Beef Products Inc. (now Empirical Foods, the kind of renaming corporations seems bent on performing to escape Google Juice of past controversy) from suing ABC News for describing its “lean finely textured beef” as “pink slime” or stop ABC News from caving in and settling the lawsuit instead of standing up for the First Amendment.

Governor Noem, why not cleverly repackage your anti-riot-boosting plan as an extension of our agricultural anti-disparagement laws to cover pipelines? Just copy SDCL Chapter 20-10A into a new chapter and, wherever it says “agricultural food product,” simply strike and insert “energy resource or infrastructure.” With a few other small changes, you have the perfect bill to stifle most pipeline protestors:

“Disparagement,” dissemination in any manner to the public of any information that the disseminator knows to be false and that states or implies that any energy resource or infrastructure is not safe for use by the public or that generally accepted construction, transportation, and management practices make energy resource or infrastructure unsafe for use by the public;…

…Any producer, shipper, or operator of energy resources or infrastructure who suffers damage as a result of another person’s disparagement of any such energy resource or infrastructure has a cause of action for damages and any other appropriate relief in a court of competent jurisdiction….

…Any person who disparages any energy resource or infrastructure with intent to harm the producer, shipper, or operator is liable to the harmed party for treble the damages so caused….

…Any civil action for damages for disparagement of energy resources or infrastructure shall be commenced within one year after the cause of action accrues [CAH, proposed copy and alteration of South Dakota agricultural anti-disparagement law to protect Keystone XL pipeline and other energy projects from protest].

Imagine the opportunities here, Governor Noem! You don’t have to hire extra cops or dispatch paddywagons to round up all those scruffy hippies. You don’t have to lift a finger! Just let one hippie cry, “Black Snake!” and TransCanada/TC Energy brings its own “Pink Slime” lawsuit that forces those poor bastards to spend all their hemp-diesel bus money on lawyers.

The agricultural anti-disparagement laws probably derive their justification from serving the state’s compelling interest in maintaining a stable food supply. Governor Noem could easily argue that the state has a compelling interest in protecting and promoting the development of energy resources and infrastructure to ensure the state and the nation maintain a steady supply of oil, gas, and other fuel sources for our military and economic security. All those scruffy hippies saying bad things about pipelines imperil our nation’s energy security, not to mention South Dakota’s own economic vitality from all those pipeline jobs and all that tax revenue.

And unlike Noem’s rushed and crushed riot-boosting bills last year, South Dakota’s agricultural anti-disparagement laws have been on the books since 1994 and haven’t been tossed by a judge yet. Write the new pipeline anti-protest bill as a simple extension of the ag-disparagement law, and Noem won’t have to worry about A.G. Ravnsborg bumbling into court and fouling her defense.

Governor Noem’s anti-riot-boosting bills aren’t in the hopper yet, so she still has a chance to take my advice and base her pipeline-boosting on existing anti-speech, pro-corporate law. We know her approach last year failed to withstand judicial scrutiny, so what’s the worst that could happen with this approach? The ACLU tackles pipeline disparagement, wins in court, and establishes case law that throws out the agricultural anti-disparagement law as well?


  1. jerry 2020-01-20

    Over 16,000 lies in just 3 years, there’s a good chance that our dope in Pierre could come in second or even surpass, the head dope in Washington. With this crop of fraudulent grifting republicans, the sky’s the limit.

    “Three years after taking the oath of office, President Trump has made more than 16,200 false or misleading claims — a milestone that would have been unthinkable when we first created the Fact Checker’s database that analyzes, categorizes and tracks every suspect statement he has uttered.” Washington Post 1.20.20

  2. Adam 2020-01-20

    It’s also very unsafe (actually dangerous) for our elderly and other ignorant rural segments of our population to consume media like Fox News and Rush Limbaugh.

    Conservative media only disparages the other side. They have no substance and intentionally fail to properly debate any issues.

    South Dakota’s solid majority operates ONLY on disparagement – not only in government but also in private enterprise.

    Rurals only care about protecting themselves against disparagement and reserve all rights to disparage everyone else at their leisure.

    I wouldn’t doubt it if less than 50% of rurals can even pronounce the word disparagement.

    Please, let our next Governor come from Rapid City or Sioux Falls!!! Please!!!

  3. Cory Allen Heidelberger Post author | 2020-01-20

    Jerry, if we could just get the Liar-in-Chief to slip and say something bad about South Dakota beef, we could sue him here in South Dakota for agricultural disparagement!

  4. Cory Allen Heidelberger Post author | 2020-01-20

    Now, Adam, we only outlaw disparagement against things we need, like tar sands oil and pink slime. Liberals are not vital to South Dakota’s well-being.

  5. Adam 2020-01-20

    Anti-disparagement laws should just go away entirely, but try telling that to a bunch of Ag folks.

  6. Adam 2020-01-20

    The last thing anyone should do is trust a rural state with anti-disparagement laws. Next thing you know “reverse racism” and “anti anti-semitism” is going to be against the law.

    Thanks rural America! You rule!

  7. Kal Lis 2020-01-20


    Given that many on the populist fringe don’t understand satire or irony, you might want to edit your 13:09 comment to include a sarcasm alert.

    As Trumpists are starting to make Joseph McCarthy look soft, they already believe “Liberals are not vital to South Dakota’s well-being.” They just don’t know how utter their belief that concisely.

    Now that you have done that for them, “Liberals are not vital to South Dakota’s well-being” might become the predicate for hearings containing the question “Are you now or have you ever been . . . .”

    (The preceding comment contains hyperbole to illustrate the irony of this irony challenged era.)

  8. jerry 2020-01-20

    Maybe the dope in Pierre could follow what the state of Kansas has just done, pass Medicaid Expansion. Yup, Kansas now is the state to look to for the ideas of Medicaid Expansion. Our neighboring state, Wyoming, is doing just that. Soon, we will be the only wallflower out in the vastness. I just hope the other 49 real states do not disparage us and riot boost our dumb arse’s out of the union.

  9. Porter Lansing 2020-01-20

    Cory. If it was your idea; can you sue for unconstitutionality; if your idea is implemented?

  10. Cory Allen Heidelberger Post author | 2020-01-20

    Porter, perhaps a better question is, if the Governor adopts my idea and then gets sued, can the plaintiffs add me as a defendant, and can the Governor try to escape liability by saying, “It was all Cory’s idea!”?

  11. Debbo 2020-01-20

    It’s hard to believe any of these “anti-disparagement” laws still exist. Didn’t the Texas law eventually get dumped after they tried to get Oprah?

    I think I’d like an individual “anti-disparagement” law. Nobody can say bad things about me or they’ll go to jail. I’m going to email my rep and senators. They’re all running for something and want my vote. Just so they spell my name right ………

  12. Cory Allen Heidelberger Post author | 2020-01-21

    By the way, Porter, if Noem were to pursue this legal gambit, I’d love to write up a blog post criticizing Keystone XL and the tar sands oil (or just retweeting a decade-plus of commentary on TransCanada’s/TC Energy’s rape of the land) to see if TC would sue. I suspect TC’s lawyers would have a heyday going through my content and would crown their arguments to the judge with this very post. It would be great fun.

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