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The laws鈥攖wo criminal laws, South Dakota Codified Laws 搂搂 22-10-6 and 22-10-6.1, and the newly-enacted 鈥淩iot Boosting鈥� Act鈥攑rohibit 鈥渂oosting,鈥� 鈥渆ncouraging,鈥� or 鈥渁dvising鈥� anyone at a protest where a fight erupts 鈥渢o acts of force or violence.鈥� This could extend to a tweet encouraging protesters to 鈥淕ive it all you鈥檝e got,鈥� or simply encouraging others to attend a protest where violence ends up occurring.

These laws threaten criminal penalties of up to 25 years and significant fines for protesters and social justice organizations that encourage or organize protests, particularly protests against the Keystone XL pipeline.

The ACLU filed the lawsuit on behalf of four organizations: the Sierra Club, NDN Collective, Dakota Rural Action, and the Indigenous Environmental Network; and two individuals: Nick Tilsen with NDN Collective and Dallas Goldtooth with Indigenous Environmental Network. They oppose the Keystone XL pipeline for several reasons, including but not limited to the government鈥檚 and companies鈥� failure to consult with tribes regarding the pipeline and the threat it, and the fossil fuel industry generally, poses to the environment.

Plaintiffs have provided, and plan to continue providing, funding, training, and other advice and encouragement to individuals who plan to protest the Keystone XL pipeline. They also advocate against the use of violence and plan to advise and encourage others to protest the pipeline through peaceful methods. All fear prosecution under the criminal statutes, and imposition of civil liability under the Act.

The lawsuit asserts that the laws violate the First and Fourteenth Amendments to the Constitution by targeting and chilling protected speech, and by failing to adequately describe what speech or conduct could subject protesters and organizations to criminal and civil penalties.

The Riot Boosting Act, which was passed during the 2019 South Dakota legislative session, gives the state the authority to sue any individual or organization for 鈥渞iot boosting,鈥� or encouraging a protest where acts of violence occur. The law mirrors two existing state laws that criminalize similar speech. Under the laws, individuals and organizations鈥攔egardless of their intent to incite violence, the likelihood that their speech or conduct would result in violence, or the imminence of the intended violence鈥攃ould be subject to civil and/or criminal penalties. Moreover, the laws do not clearly describe what conduct or speech is considered 鈥渞iot boosting鈥� or 鈥渆ncouraging鈥� a riot. The ACLU argues that such vague and broad language invites arbitrary enforcement, will chill protected speech, and will result in indiscriminate targeting of peaceful organizers.

In addition, the Act imposes liability on those who 鈥渟olicit鈥� or 鈥渃ompensate鈥� others 鈥渢o be arrested,鈥� which could encompass things like offering to post bond for an individual who was falsely arrested at a protest. And the Act also creates a 鈥渞iot boosting fund,鈥� which will be filled with damages paid by those who violate the Act and may be used to cover costs of pipeline construction鈥攖hat is, the Act may force protesters to fund precisely that which they are protesting.

The case, Dakota Rural Action v. Noem, was filed in the Rapid City-based Western Division of the U.S. District Court for the District of South Dakota. Because the challenged laws expose the plaintiffs to immediate and irreparable harm, they are asking the court to immediately prohibit the state from enforcing these laws as the case goes forward.