ACLU Calls North Dakota Bill Targeting Meddling With “Critical Infrastructure” Unconstitutional


Back in 2016, during the heights of the #NoDAPL protests against the Dakota Access Pipelines, a group of left wing activists calling themselves “valve turners” broke into pipeline facilities and, well, turned some valves.

One of the valves turned was in North Dakota, along TransCanda’s Keystone line.

This was a spectacularly stupid thing to do. Meddling with pipelines can result in spills and, worse, injury and death. But the zealots who turned the valves used a necessity defense, arguing that their actions were necessary to protect themselves and the world. It didn’t work out so well, at least for the valve turner here in North Dakota. He was sentenced to prison time.

Anyway, flash forward to the 2019 legislative session, and state Senator Janne Myrdal (R-Edinburg) has introduced SB2044 which would expand existing law prohibiting the tampering with public services (full text as introduced here).

The bill fleshes out the definition of what constitutes tampering and/or vandalism, as well as the definition of what constitutes “critical infrastructure,” but the biggest change to the status quo is that it opens up the door to prosecuting individuals or groups which conspire with those doing the tampering/vandalism.

Here’s the pertinent excerpt:

The galaxy of hard left donors and groups which facilitate stunts like valve turning and attacks on pipeline development are going to hate that section. Because while they’re happy to treat the zealots like the valve turners as useful idiots, they’re certainly not keen on being directly culpable for the actions they support.

Enter the ACLU, which today announced they feel Myrdal’s bill is unconstitutional.

“At best, this bill is entirely unnecessary. At worst, it is meant to chill speech. Existing law already prohibits trespass and malicious destruction of property and conspiracies to commit the same. Given that, this bill’s focus on critical infrastructure facilities belies its neutral purpose – as do its excessive fines,” Heather Smith, executive director of the ACLU of North Dakota, said in a press release (see below). “A person cannot lawfully be prosecuted for using truthful information to sway public opinion.”

“This bill, like similar legislation in Oklahoma and Colorado, builds on a trend of anti-protest legislation that aims to chill protesters from using precisely those tactics that have proven most successful for getting their voices heard,” the statement also claims.

I don’t agree. While certainly I’m not keen on any sort of legislation which limits free speech, I don’t see how this legislation in particular targets any sort of lawful activities.

We can all agree that crimes like vandalism and trespass are not constitutionally protected activities. You can say what you want, but you don’t get to vandalize. You don’t get to trespass. Arresting you for those things is not unconstitutional. Otherwise someone could burn down your house, and then claim they were merely making a constitutionally protected statement.

Further, if a given political organization is encouraging unlawful activity, if they’re promoting that activity, they are not engaged in constitutionally protected activity. They should be held responsible. If Myrdal’s bill passes, they could be.

That’s a good step toward ending violent, unlawful protest tactics.

The ACLU thinks otherwise, but then the ACLU has a habit these days of wearing some pretty hefty ideological blinders.

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