The organized resistance by North and South Dakota Native Americans to the construction of the Keystone XL and Dakota Access pipelines over their land remains one of the most prominent and effective acts of protest in recent memory. And because such protests absolutely must not happen, especially not ones that inconvenience the world's most powerful oil companies, they were soon met with Republican demands that the right of protest be restricted lest this sort of thing happen again.
In early March, South Dakota's Republican Gov. Kristi Noem pushed forward a set of legislative bills aimed at cutting off, to whatever extent possible, the ability of the state's tribes to coordinate future protests on the size and scale of those held in recent years. Senate Bill 189 defines a new term, "riot boosting", which allows the state and third parties to sue any person or group that offered support—whether financial, organizational, or merely promotion of—a protest that was later declared by the state to have fomented a "riot."
If a group of protesters engaged in a fistfight with a group of counter-protesters, or merely did not fully bend to the orders of law enforcement, in future pipeline protests, TransCanada would be allowed to file civil suit against any activist group that so much as encouraged attendance at the original protest, whether it be through Facebook, Twitter, or distributed flyers. It could sue those that donated to fund the protests, or those that offered food, camping supplies, or other aid. That law was signed into law on Wednesday.
If this sounds insane and obviously unconstitutional to you, you're in good company: The ACLU and other groups filed suit last Thursday to block the new law, arguing it to be a transparent effort to intimidate Americans into withdrawing from legal protests against the pipelines.
“Our concern and the reason we are filing this case is that it will silence dissent and chill people from speaking out,” Vera Eidelman, one of ACLU’s attorneys on the case, said.
The effort by state Republicans is self-evidently an attempt to do exactly that. The "Pipeline Package" presented by Noem in emergency session was described as a direct response to the Native pipeline protests and seems specifically designed to separate South Dakota's tribes from the national popular support and funding that contributed to their success. State Republicans may not be able to stop the protests on TransCanada's behalf, but they can craft legislation that allows the multibillion dollar firm to sue individual activist groups and organizers into submission. The company doesn't have to win: It merely has to drag each proceeding out long enough to bankrupt the targeted groups.
That's the theory. In practice, declaring that any American who so much as gave a tuna sandwich toward a protest that the state later declared to have devolved into a "riot" is responsible for the riot itself would still appear to be blatantly unconstitutional, no matter what the pipeline companies desire. Yet again, we will have to wait to find out.