The First Amendment of the United States Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” While the wording explicitly mentions that Congress cannot make laws prohibiting the freedom of speech and assembly, including the right to organize and protest, the US Supreme Court since its inception has held that state governments also cannot create laws limiting what it called “the matrix, the indispensable condition of nearly every other form of freedom.”
Today, 18 states have tried to pass legislation that criminalizes the peaceful protesting of oil and gas pipelines. Seven of these states have succeeded in passing laws which organizations such as the American Civil Liberties Union (ACLU) consider unconstitutional and a further six states have yet to vote on such legislation. Already, cases have erupted such as that of Cindy Spoon. Spoon was on her canoe in Louisiana protesting the Bayou Bridge pipeline. She was in navigable, public waters which are free to traverse without a permit, yet she was charged with trespassing which carries a maximum sentence of five years in prison.
A Texas law targeted against protestors can be punished even harsher if activists are charged with “intent to damage or destroy” oil or gas facilities, threatening a third-degree felony with 10 years behind bars. This effectively makes it as punishable as attempted murder.
These laws are part of a two-year trend among states designed as a reaction to the Standing Rock protests of 2016. At that time, protestors, many from other states, rallied with Native Americans against the creation of the Keystone XL pipeline proposal from Canadian oil giant TransCanada. Protestors argued that the pipeline would endanger the water supply for South Dakotan tribal communities. While the event began peacefully, violent clashes with law enforcement personnel began making headlines which drew even more to the cause. The proposal was ultimately not approved by former US President Barack Obama, but revived under President Donald Trump who authorized an expedited approval process for building the pipeline along an alternate route which, in theory, would have less environmental impact.
Protestors of the Keystone XL pipeline had a right to be concerned. In April 2016, another TransCanada Keystone pipeline leaked 16,800 gallons in South Dakota. Then in November 2017, 210,000 gallons were also spilled. The larger incident occurred near the Lake Traverse Reservation, posing a risk to the aquifer which provides water to the tribe. Under the new proposal, the Keystone XL pipeline would cross over the Ogallala Aquifer, which ranks as one of the largest of its kind in the world. There is also the issue of the pipeline running through tribal land.
This time around, the stakes are higher for protestors. According to a new South Dakotan state law, the Riot Boosting Act aims to squash activist demonstrations before they even begin. By using the new term ‘riot boosting,’ the law gives the state and oil companies an alarming amount of power to sue individuals, even those who peacefully exercise their First Amendment rights. Breaking the law risks up to 25 years in prison alongside fines.
Governor Kristi Noem announced the law by blatantly stating it was developed by coordinating with TransCanada and police officers. Not only does the law punish protestors, but it also provides a mechanism for TransCanada to take action against out-of-state groups which could be accused of “riot boosting.”
“The legislative package introduced today will help ensure the Keystone XL pipeline and other future pipeline projects are built in a safe and efficient manner while protecting our state and counties from extraordinary law enforcement costs in the event of riots,” said Noem.
The ACLU has taken particular umbrage to the notion of attacking out-of-state organizers. As a historical correlation, it pointed out that this argument was also used by former Alabama Governor George Wallace in 1964. During a time of increased racial tensions, Wallace, a staunch segregationist, argued that racial tensions were nonexistent in the South aside from instances caused by “outside agitators.”
According to the law, if people in New York were to rally activists via Twitter, for example, to protest the pipeline in South Dakota, the state and TransCanada could sue them. This stance of blaming outside influences for the protests deflects the core issue of discontent from within the state. It ignores legitimate arguments and denies their existence by painting the issue as foreign banter designed to disrupt corporate interests and economic gains for the state.
Of course, there is also the unconstitutional aspect of these laws, which has yet to be heard by the Supreme Court. The laws are still in their infancy and lawsuits must pass through lower courts in a process that often involves several stages of appeals. Spoon’s case will be one of the first to be tried in a federal court. Backed by the Center for Constitutional Rights, Spoon is directly challenging the Louisiana law that charged her with trespassing. Her attorney, Bill Quigley, is a lawyer for Loyola University New Orleans.
Quigley stated that these laws are a new breed of legislation which the US has not yet seen before.
“This is not a problem that any private citizen has ever filed a complaint about. This is a total industry-created issue,” said Quigley, a law attorney at Loyola University New Orleans. “They are essentially passing these laws to give themselves enhanced protection.”
Capitalism has often run rampant in America no matter the cost to the worker and her livelihood, but the creation of these laws effectively places corporate rights over the First Amendment rights of the individual. The ACLU sees no signs of this trend slowing down as more states jump on board, swayed by lobbyist dollars and promises of jobs.