RAPID CITY, S.D. — South Dakota is changing its stance on Republican Gov. Kristi Noem's controversial Senate Bill 189, or "riot-boosting" bill, saying that the bill does not, in fact, apply to potential out-of-state individuals who condone pipeline protests.
Wednesday marked the first day of hearings for the American Civil Liberties Union's federal court case challenging the constitutionality of Noem's SB 189, as well as two existing South Dakota criminal statutes defining rioting. Activists in red filled the federal courtroom in Rapid City to watch plaintiffs' lawyers motion for U.S. Judge Lawrence Piersol to prohibit the state from enforcing the law pending litigation, and the state's defense attorneys motion for the case to be dismissed. Piersol did not make any rulings from the bench.
Noem introduced SB 189 as part of a pipeline package in the final week of the 2019 legislative session, in anticipation of TC Energy (previously TransCanada)'s planned Keystone XL pipeline. Under the law, someone who "direct(s), advise(s), encourage(s) or solicit(s) any other person participating in the riot to acts of force or violence" can be found liable for triple the cost of damages incurred by the state, a local government or "an otherwise damaged third party," such as TC Energy.
The ACLU is arguing that the law violates the First and Fourteenth amendments to the Constitution. They argue that it infringes upon rights to free speech and assembly and is unconstitutionally vague, confusing activists about what speech is legal and what is not.
Activists aren't the only ones who are confused. Deputy Attorney General Rich Williams went back and forth with Piersol on Wednesday, arguing that the law only applies to violence-inducing speech made by a riot participant. Williams is defending Noem and Attorney General Jason Ravnsborg.
The argument was a sharp turn from Noem's comments when she introduced the bill in March. In a March 4 news release announcing the bill package, Noem said, "This package creates a legal avenue, if necessary, to go after out-of-state money funding riots that go beyond expressing a viewpoint but instead aim to slow down the pipeline build."
At a press conference the same day, Noem said that George Soros is the "most typical national offender" funding violent out-of-state protesters.
Piersol appeared skeptical of Williams's reading of the law on Wednesday, saying, "I don't think I can decide it on that basis because I think that the state's reading is not a correct reading of the statute."
"Frankly, I don't think I should completely ignore the fact that the whole billing of this, including press statements and everything else by leaders of the state government has been, 'We're going to get those outsiders,'" Piersol said. "And now they're saying by a strange reading of this that it’s only going to be speech that is at the same time of the riot. If that is what this is intended for, that’s not the way I read the statute."
ACLU lawyer Stephen Pevar argued that the confusion surrounding the law is a constitutional violation in of itself. The law is written so vaguely and is so open to individual interpretation by courts and law enforcement officers, he argued, that activists are afraid to speak and assemble for fear of violating the law.
Pennington County Sheriff Kevin Thom is included in the lawsuit, and has motioned to be dismissed. His lawyer Rebecca Mann said Wednesday that he should not be held liable for the state's laws. Plaintiffs argue that protests are likely to occur in Pennington County and Thom will therefore be responsible for interpreting the law. Piersol did not rule on Thom's or any other motions on Wednesday.
In a written statement following Wednesday's hearing, Kristin Wileman, a spokesperson for Noem, said, "The governor fully supports freedoms of speech and assembly. There must also be law and order. No one has the right to incite violence, and for those who do, there should be consequences for their actions."