FACT CHECK: South Dakota Legislation Doesn’t Threaten Free Speech

CLAIM: The ACLU of South Dakota claims a new state law designed to reduce the risks associated with pipeline construction will “chill free speech” and “blur the line between constitutionally-protected speech and unlawful actions.”



South Dakota Governor Kristi Noem signed legislation Wednesday that allows the state to recoup “extraordinary” law enforcement costs associated with protests at the Keystone XL pipeline.

The new laws do two things:

Senate Bill 189 would allow the state, and potentially a third party in partnership with the state, to sue protesters or “riot boosters” for up to three times the damage estimate to cover extraordinary law enforcement costs related to a pipeline’s construction. Senate Bill 190 would create the Pipeline Engagement Activity Coordination Expenses, or PEACE fund, to pay for those extraordinary costs.

The South Dakota law isn’t anti-free speech, which is rightfully protected by the First Amendment. Instead, it is anti-trespassing and anti-violence at infrastructure worksites, which are not protected by federal, state or local law.

The law protects speech but forbids trespassing and violence because all stakeholders – including those who oppose infrastructure projects – have the right to voice their opinions and have them heard throughout the legislative and regulatory process, while holding those who break the law accountable.