Holding Political Extremists Accountable for Violence and Vandalism Is Not an Effort to “Chill Speech”


Protest organizer Kristen Kelsch hold a sign and chants across the street from the State Capitol in Bismarck on Thursday. A line of police prevented Kelsch and others from hold the protest to the Dakota Access Pipeline on the Capitol grounds

The ACLU opposes SB2044, a bill which clarifies law around tampering with critical infrastructure like power plants or pipelines and ups the penalties for doing so, and for the life of me I can’t figure out why.

According to the organization the bill is an assault on protected speech. They said, on the occasion of the state House sending the bill to Governor Doug Burgum for signature yesterday, that it isĀ “anti-protest legislation” which “will punish association, violate freedom of assembly and almost certainly stifle protected speech.”

“At best, this bill is entirely unnecessary,” the group said in a statement. “At worst, it is meant to chill speech. Existing law already prohibits trespass and malicious destruction of property and conspiracies to commit the same.”

You can read the version of the bill on Burgum’s desk below, but here’s an excerpt illustrating the thrust of the legislation. It creates a term in the law called “critical infrastructure” (which you can see defined in the full text below) and then makes it illegal to vandalize that infrastructure or otherwise impede its repair or construction:

This legislation is aimed squarely at the Dakota Access protests, not to mention the so-called “valve turners” who are political extremists who break into pipeline facilities and attempt to turn them off, creating enormous risk for leaks and even explosions.

Note that nothing in the bill outlaws lawful protest. You can still rally against a pipeline or a power plant. You just can’t block roads. Or deface property. Or tamper with the operation with that infrastructure.

What’s so bad about that? The bill even contains explicit language protecting lawful assembly and political protests: “This section may not be construed to prevent or prohibit lawful assembly and peaceful and orderly petition for the redress of grievances, including a labor dispute between an employer and its employee.”

But I suspect what has really drawn the ACLU’s ire is this section of the law which creates liability for organizations which facilitate extremists in their unlawful activities:

Left wing extremist groups often use protesters as cannon fodder. If they want to impede the construction of, say, a pipeline they’ll organize political zealots to do so with violence and vandalism. They’ll often pay the expenses of these zealots, too.

Why shouldn’t that sort of conspiracy to commit a criminal act be itself punishable? If these organizations are facilitating peaceful protests and lawful dissent they have nothing to worry about. But if they’re helping people engage in violent, unlawful protests of the sort we saw during the #NoDAPL demonstrations then they should be held accountable.

That’s hardly an affront to free speech.

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