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Federal court blocks Noem's controversial anti-'riot boosting' law

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Protesters gather near the Watertown Civic Arena Friday, May 8, 2015, to voice their opposition to the Keystone XL pipeline. Marcus Traxler / Forum News Service
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PIERRE, S.D. — A federal judge has blocked South Dakota's controversial anti-"riot boosting" law as a lawsuit challenging the law's constitutionality proceeds.

U.S. District Judge Lawrence Piersol on Wednesday, Sept. 18, granted plaintiffs' request for a preliminary injunction of several South Dakota riot statutes, including Republican Gov. Kristi Noem's infamous riot-boosting law . The law was passed in the final days of the 2019 legislative session to many activists' dismay , in anticipation of TC Energy's (formerly known as TransCanada) upcoming construction of the Keystone XL pipeline through South Dakota.

Noem's Senate Bill 189 establishes civil penalties for so-called riot boosting , or encouraging violent protests aimed to shut down pipeline construction. Per Noem's public statements when she introduced the bill, someone guilty of riot boosting does not necessarily have to directly participate in the violent protest.

The American Civil Liberties Union in March filed a federal lawsuit on behalf of six plaintiffs challenging the constitutionality of the law, arguing that it violates the First and 14th Amendments by chilling free speech and being unconstitutionally vague.

Piersol in his decision called into question the scope of the law, and what speech could constitute as riot boosting. The list of constitutionally protected speech the act makes illegal "goes on and on," he wrote, and social media would be "fertile ground" for charges.

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"Giving a cup of coffee or thumbs up or $10 to protestors is encouraging protestors," he wrote. "Asking someone to protest is soliciting .... Suggesting that the protest sign be bigger is advising .... And each of the examples involve protected speech or expressive activity."

Piersol went on to ask how Civil Rights activists of the 1960s would be judged under South Dakota's rioting laws. Martin Luther King Jr. and the Southern Christian Leadership Conference, he concluded, "could have been liable under an identical riot boosting law."

State defense lawyers during the case's opening arguments in June changed course from lawmakers' narrative during the bill's passing, saying that the law would only apply to riot participants. It was a stark turn from Noem's own framing of SB 189: When she introduced the bill in March, she said it was meant to " go after out-of-state money funding riots ." Asked who funds such campaigns, she said George Soros is the " most typical national offender ."

Piersol didn't appear to buy the state's arguments from June. He wrote that "the reason for the introduction of the riot boosting legislation was also clearly stated" by Noem, citing her March news release.

ACLU senior staff attorney Stephen Pevar said in a Wednesday news release that SB 189 "was clearly intended to suppress constitutionally-protected, peaceful protests of the Keystone XL pipeline."

"We’re glad the court recognized that these vague and overbroad laws threaten the First Amendment rights of South Dakotans on every side of the issue," Pevar added.

Both Noem's office, as well as Attorney General Jason Ravnsborg's office, declined to comment on the matter because it is pending litigation.

Mearhoff is a Minnesota Capitol Correspondent for Forum News Service. You can reach her at smearhoff@forumcomm.com or 651-290-0707.
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