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Blue State Refugees Win Back First Amendment Rights for South Dakotans

At least two groups are gathering to protest coronavirus vaccine mandates in Pierre during the Special Sessions Monday and Tuesday. One group of anti-social anti-scientists, Health Freedom South Dakota, is closing down South Dakota Boulevard northeast of the Capitol. (Quick poll: how many of the conservatives closing down a public street in protest during a uniquely busy traffic period would also be smirk-chanting Lynne DiSanto’s good old “All Lives Splatter” slogan in response to protestors shutting down streets to protest racist police shootings?) Their November 2 announcement says the protest starts Monday at 8 a.m. and “may continue throughout the week, pending Legislative action.”

Getting the Pierre City Commission to approve that protest was surprisingly easier than getting South Dakota’s Freedom-over-Vaccines Cheerleader-in-Chief Kristi Noem to approve a protest on that theme at the Capitol. A group calling themselves Blue State Refugees, exactly the kind of freedom-loving migrants whom Noem has courted to move here from other states to celebrate freedom and boost her slim vote margin in 2022, asked to hold a similar anti-vaccine-mandate protest on the Capitol grounds and claim Bureau of Administration senior secretary Joan Henderson refused them because it’s Christmas:

In a 20-plus-page lawsuit, the group claims an official with the Bureau of Administration told them the grounds were off-limits between Nov. 1 through New Year’s Day, as the “State is decorating its capitol for Christmas.” The state official, says the lawsuit, invoked a “huge Christmas Tree display” and invited the protesters to attend a lighting ceremony later in November [Christopher Vondracek, “South Dakota Statehouse Officials Cited Christmas Decorations in Blocking Protest, Says Lawsuit,” Mitchell Republic, 2021.11.04].

What? Kristi Noem promises one thing, and you get the opposite? Yup—Merry South Dakota Christmas, Blue State Refugees!

These refugees got no help from Health Freedom South Dakota, whose director, Mya T. Olson, issued this xenophobic dismissal of these unknown outside thunder-stealers:

While we stand for all voices to be heard, it pains me deeply to see the hard work and efforts of Capitol staff be demonized, and the potential for our years of hard work to be entangled with that of unknown provocateurs from out of state. To be perfectly clear, Health Freedom South Dakota and the other groups participating in this rally are grateful for the space provided us outside the building, and we support the long-standing traditions of our Capitol’s Christmas traditions. We want to take this time to reiterate our gratitude for the Capitol and City of Pierre staff that bent over backwards to make us feel welcome, and heard and the work done to find a creative solution that benefits all those involved [Mya T. Olson, in Cooper Seamer, “Lawsuit Filed to Allow Protests on Capitol Grounds as Special Session Approaches,” KSFY, 2021.11.04].

Those poor provocateurs, who didn’t realize that moving to South Dakota doesn’t change their status as out-of-staters for—what, 15, 20 years?—had to make a federal case out of it to get what they want. Blue State Refugee members Luke Robertson and Chad Dollick, with the help of the DC-based Institute for Free Speech filed suit on Wednesday, November 3. The plaintiffs’ complaint notes that the Bureau of Administration’s own guidelines (revised May 2019) forbid non-Christmas activities in the Capitol building from “Thanksgiving week through New Years” but say nothing about a blanket protest ban during the decorating period. Nonetheless, Henderson said (plaintiffs’ words, “demonstrations are not allowed between November 1 and January 1 anywhere on State Capitol grounds property because they are decorating the Capitol for Christmas. Henderson then invited the refugees to come see the decorations.

The Blue State Refugees say nuts to a two-month ban on political demonstrations at the Capitol:

Advocating for political change “at the site of the State Government” is the “most pristine and classic form” of exercising the First Amendment freedoms of speech and petition.

State capitol grounds are the quintessential traditional public fora, “parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'”

…Defendants’ seasonal speech prohibition – their policy of refusing all capitol grounds permit applications, and thereby forbidding “any event, function, or demonstration on the capitol complex,” S.D. Admin. Code § 10:08:01:02; Guidelines § A.1, including “any: formal or informal gathering or congregation of people for any purpose; display or exhibit; or performance, demonstration or ceremony,” Guidelines § A.2, between November 1 and January 1, on account of Christmas decoration, is not narrowly tailored to serve any significant governmental interest and does not leave open any ample alternative channels of communication. Thus the seasonal speech prohibition on its face violates the First Amendment right of free speech [Alan Gura and Stacy Hegge, counsel, Complaint for Declaratory, Injunctive, and Other Relief, Blue State Refugees, Luke Robertson, and Chad Pollock v. Kristi Noem, Scott Bollinger, Brent Gill, and Leah Svendsen, filed 2021.11.03].

Now if Kristi were really thinking, she’d see an opening there to argue that the state has an overwhelmingly compelling interest in decorating for Christmas and thus ensuring that all good South Dakotans go to Heaven, so how dare these Blue-State heathens bring their war on Christmas here?

But no—she cries “miscommunication” and “Nobody’s being denied their free speech rights” and simply reverses her Bureau of Administration’s clearly communicated denial of free speech rights:

The state Bureau of Administration has reversed itself and granted a permit to an anti-vaccination group that plans a protest at the South Dakota Capitol on Monday and Tuesday during the Legislature’s special sessions, a lawyer for the group said Friday.

State government’s decision made unnecessary a hearing that U.S. District Judge Roberto Lange had scheduled for Friday morning to consider whether to grant a temporary restraining order.

…The Republican governor’s communications director, Ian Fury, confirmed Friday that the permit was issued [Bob Mercer, “State Will Allow Anti-Vax Protest at S.D. Capitol,” KELO-TV, 2021.11.05].

Noem’s reversal mooted the need for the Court to enjoin the BOA’s two-month speech ban, but in his order cancelling the scheduled Friday morning hearing, U.S. District Judge Roberto A. Lange, who himself this year issued a vaccine mandate to federal courthouse employees, made clear that the Noem Administration’s written ban on extended holiday season protest violates the Constitution. He also said the anti-vaxers’ proposed bill might also violate the Constitution, but even knuckleheads have free speech rights:

The State may have a significant interest in protecting its “Christmas at the Capitol” tradition. Long-held government traditions such as this serve the State’s constituents and may foster civic engagement. However, a blanket restriction prohibiting any political gathering—apart from gatherings of the Legislature itself—on State Capitol grounds for two months does not appear to be narrowly tailored to any such interests. The Capitol grounds consist of over 200 acres, and the “Christmas at the Capitol” display is contained within a relatively small area of these grounds…. Therefore, forbidding any demonstration on Capitol grounds is not narrolwy tailored to protecting “Christmas at the Capitol” preparations.

…Although plaintiff’s advocacy may be wrong-headed in supporting legislation of dubious constitutionality, neither this Court nor the State can discriminate based on the content of the Plaintiffs’ proposed speech. The public interest is served by allowing the free exercise of First Amendment rights [Judge Roberto A. Lange, Opinion and Order Cancelling Hearing and Denying Injunction as Moot, Blue State Refugees v. Noem, 2021.11.05].

Judge Lange encourages the parties to jointly move dismissal after the plaintiffs have their say at the Capitol next week, but for now, Noem’s easy cave-in to fellow pandemic preferrers isn’t getting her out of this latest lawsuit over her anti-protest proclivities:

Alan Gura, an attorney for the Institute for Free Speech, told KELOLAND News that the lawsuit filed by Blue State Refugees against bureau officials and Governor Kristi Noem would continue.

…“We resolved the issue whether the protest will take place next week,” Gura said. “The lawsuit is not dismissed. It’s going forward” [Mercer, 2021.11.05].

Kristi Noem warned out-of-staters not to come and change South Dakota. But these Blue State Refugees are changing South Dakota for the better, bringing their out-of-state sensibility about freedom of speech and helping open up our (and now theirs, too, because they are us!) Capitol, our Temple of Democracy, the People’s House, to open protest. All South Dakotans should feel free to come to the Capitol and state their views on matters of public import, civilly but loudly and freely. Yay for change! Yay for refugees! And yay for re-asserted First Amendment rights (and irony) for Christmas!

And yay for vaccines saving lives and the economy. Let’s get some counter-protestors up to the Capitol this week to talk some sense into these anti-vax knuckleheads.


  1. Richard Schriever 2021-11-06 09:34

    Their heads are full of nonsense – no room for anything else. Some “regular” SDn’s stealthily joined one of their FB groups to spy and engage and attempt to educate them as the how SD really works – myself included. I got banned from the group for simply explaining a basic tenet of living in a “right to work” state – like SD. I’m sure the irony of their own actions in that regard are entirely lost on them. They are not here to learn, they are here to dictate.

  2. jerry 2021-11-06 09:49

    Blue state tax evaders would be more appropriate. Poor pitiful things, coming to South Dakota so they won’t have to pay income tax. Wait until they get their property tax bills.

  3. jerry 2021-11-06 09:59

    96 % of Tyson Food workers shows a very successful vaccine mandate. Dirty Johnson should take a look at these guys to see how capitalism works if you want success. Missouri is not a “Blue State” any more than South Dakota is, but they do know how to do business there.

  4. Porter Lansing 2021-11-06 12:26

    What old man does this sound like?
    “unknown provocateurs from out of state”
    Protest is “Anti-Christmas”, innit?
    Be afraid SD; be VERY afraid.
    ha ha ha ha ha …..

  5. CK 2021-11-06 16:23

    Ahhh Richard, I’d wondered where you went. I’m still in there, still lightly trolling. Refugees, my a**.

  6. Mark Anderson 2021-11-06 16:42

    Gee Kristi, I could use some Christmas money, care to bet that you lose your argument with the feds on vaccines? Anybody out there really? Come on.

  7. ArloBlundt 2021-11-06 16:52

    Well…we usually have farmers on combines protesting in Pierre…Now we have people from God Knows Where protesting against medical science …They are pro-horse dewormer (and well they should be as you get a free bail of hay and a bushel of oats with every prescription…(ask your local Quarterback)…Pierre is a hotbed of vaccination (Hughes County at over 60%)…this cannot end well..When will Lt. Governor Rhoden speak out and provide our state with real leadership…The center cannot hold…

  8. grudznick 2021-11-06 17:59

    If the Rhoden Rhangers rhide into Pierre for the sessions of the legislatures it could be a very interesting week indeed.

  9. Jake 2021-11-06 19:55

    Arlo, don’t expect Rhoden to be any better than Noem. Methinks he might even be worse.
    Repubs have hit the scrapings off the bottom of the barrel where the sediment lies…..

  10. grudznick 2021-11-06 20:25

    Mr. Blundt, Mr. H also censored my response to you on this wonderful topic.

    grudznick said:

    Well, if the Rhoden Rhangers rhide into Pierre on Monday, it will certainly be a very interesting day in the special sessions of the legislatures.

    or something very close to that. It is rumored some of the Rhoden Rhangers are having a planning meeting tomorrow to discuss just such an endeavor.

  11. Cory Allen Heidelberger Post author | 2021-11-07 08:03

    But the point is that these knuckleheads have opened the door for all of us, reasonable and unreasonable alike, to make our voices heard in noble civil protest on the Capitol grounds all through the holiday season. It’s nice to have these things written down in court orders so when we do raise our picket signs around the Capitol, we can tell Noem’s jackboots to keep their filthy paws off us.

  12. Bill 2021-11-07 08:51

    Are there no real economic, health or education issues in SD? . . . arguing about a mandate that was never really a mandate (workers could take a Covid test instead). I’m waiting for Republicans to offer at least one possible solution to one of the many national issues facing our nation.

  13. Anne 2021-11-07 12:43

    Are those against the Covid mandate also demonstrating for the repeal of this law?

    *13-28-7.1. Immunizations required for admission to school or early childhood program–Exceptions–Rules.
    Any child entering school or an early childhood program in this state, shall, prior to admission, be required to present to the appropriate school authorities certification from a licensed physician that the child has received or is in the process of receiving adequate immunization against poliomyelitis, diphtheria, pertussis, rubeola, rubella, mumps, tetanus, meningitis, and varicella, according to recommendations provided by the Department of Health. The Department of Health may modify or delete any of the required immunizations. As an alternative to the requirement for a physician’s certification, the child may present:
    (1) Certification from a licensed physician stating the physical condition of the child would be such that immunization would endanger the child’s life or health; or
    (2) A written statement signed by one parent or guardian that the child is an adherent to a religious doctrine whose teachings are opposed to such immunization.
    The Department of Health may promulgate reasonable rules, pursuant to chapter 1-26, to require compliance and documentation of adequate immunization, to define appropriate certification, and to specify standard procedure.

  14. ArloBlundt 2021-11-07 16:19

    Well…its come to my attention that Robert Kennedy Jr. and his departed cousin John Kennedy Jr. may be attending the Blue State Refugees protest on either Monday or Tuesday depending on the metaphysics involved in arranging an appearance by JFK Jr. He was a no show in Dallas but, if Divine Intervention can be negotiated, may lead the protest down South Dakota Boulevard with his cousin and other like minded though not yet deceased Covid vaccine protesters. We look forward to an active escort of the living and the dead by Rhoden’s Rhangers.

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