Critical Infrastructure Bills written by corporate lobbyists to chill the Constitutional Right to protest plague the West during the 2019 legislative season.
With the quick stroke of a pen, South Dakota Governor Kristi Noem signed two bills into law creating new financial punishments for those supporting or participating in protests. The legislation sailed through the legislature, placing South Dakota in the lead of a movement sweeping the West to chill lawful protest, and punish those who speak out.
Breaking rules to rush bills through South Dakota’s legislature
Noem indicated that the bills would allow the state to “go after funders” of disruptive protests related to the construction of pipelines, as well as the money that supports them. A new fund, ironically named “PEACE,” would be established as a mechanism for suing organizations which encourage or support unlawful activities, a practice deemed “riot boosting.” Individuals and organizations could be held liable for substantial amounts of money for any involvement in a disruptive protest, even unknowingly supporting those who commit an unlawful act. The money would then be used to reimburse local and state governments which incurred costs due to the demonstrations.
Opponents of the bills, both of which spent less than a week being considered in the legislature, are deeply concerned with the process and the potentially unconstitutional implications.
In a written release, Crow Creek Sioux Tribal Chair Lester Thompson Jr. said the intent of the bills is to “suppress the right to speak out against the TransCanada Keystone XL pipeline, limiting our right to free speech and assembly in protection of our water and land.”
The intent of the bills is to “suppress the right to speak out against the TransCanada Keystone XL pipeline, limiting our right to free speech and assembly in protection of our water and land.”
TransCanada, a Canadian company, donated $10,000 to Governor Noem’s inauguration. The company then worked in concert with Governor Noem and legislative leadership to push the package that included SB 189 through the process in order “to exclude citizens and organizations from having adequate information or meaningful impact in their own democracy.”
The potential to chill constitutionally-protected demonstrations also worries family agriculture and conservation group Dakota Rural Action.
Dakota Rural Action Chair John Harter expressed his concern, stating, “Protests aren’t riots, but the way these bills are written will encourage law enforcement and prosecutors to make that charge in order for the state to extort money for their new slush fund.”
With the specter of the Keystone XL pipeline looming, and in a nation in which one in five adults have attended a political protest, rally or speech in the past two years, costly legal challenges to the law are likely to begin soon.
The new laws are in line with a general trend toward the tougher treatment of protestors and the rise of authoritarian rhetoric, especially following the Keystone XL protests. Since 2016, at least 15 bills restricting free speech and protest rights have been introduced in WORC member states across the West.
“Protests aren’t riots, but the way these bills are written will encourage law enforcement and prosecutors to make that charge in order for the state to extort money for their new slush fund.”
The American Legislative Exchange Council (ALEC) has produced a model bill, “Critical Infrastructure Protection Act” that states are using as a template for legislation. These bills impose large fines and prison sentences on protesters and larger fines on “conspiring groups” that impede critical infrastructure.
In addition to South Dakota, several “Crimes Against Critical Infrastructure” Bills were introduced in member states In 2019. Idaho and Wyoming defeated them while North Dakota passed theirs.
Critical Infrastructure bill dies in Idaho
The bill sought to raise potential penalties for protests near oil pipelines and other facilities by providing for the offense of “critical infrastructure trespass.” Possible punishments range from one year in jail and $1,000 fine up to 10 years in prison and a $100,000 fine. The bill also provides that an organization that “aids, abets, solicits, encourages, compensates, conspires, commands, or procures “a person to commit felonious infrastructure trespass is liable to a fine of up to $1 million.” The bill died in committee.
People coming together defeat unlawful bills in Wyoming
Powder River Basin Resource Council (PRBRC), has seen this bill introduced twice now in Wyoming. As an organization primarily of ranchers and farmers, they had deep concerns that the broad and vague language could be construed to prosecute farmers and ranchers who oppose development on right-of-ways on their own property. Together with their partners, PRBRC organized, packed committee hearings, and presented hours of testimony against the bill, killing the bill in committee.
North Dakota loses free speech protections
HB 2044, Crimes Against Critical Infrastructure, was signed into law by the Governor on April 11th, 2019.
WORC believes in the power of citizens to stand together and create change in their communities. Our member groups often bring people together on sidewalks, streets, and fields to rally and celebrate our power, and will continue to do so. The right of people to have a voice on issues that impact them is a foundation of our democracy.
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