The Volokh Conspiracy

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Free Speech

Ban on Demonstrations Near South Dakota Capitol Likely Violates the First Amendment

The government had tried to shut down the 200-acre grounds for two months (including during a special session of the Legislature) for tree decoration.


From Chief Judge Roberto Lange's decision in Blue State Refugees v. Noem (D.S.D.):

The State may have a significant interest in protecting its "Christmas at the Capitol" tradition. Long-held government traditions such as this serve the State's constituents and may foster civic engagement. However, a blanket restriction prohibiting any political gathering apart from gatherings of the Legislature itself—on State Capitol grounds for two months does not appear to be narrowly tailored to any such interests.

The Capitol grounds consist of over 200 acres, and the "Christmas at the Capitol" display is contained within a relatively small area of these grounds. Therefore, forbidding any demonstration on Capitol grounds is not narrowly tailored to protecting "Christmas at the Capitol" preparations. Further, the State does not appear to have provided "ample alternative channels of communication." Therefore, the Plaintiffs have initially demonstrated a likelihood of success on the merits of their claims.

The state seems to be going along with this:

The parties have stipulated to postpone the hearing that this Court had set, advising
that the State has agreed to grant a permit allowing the Plaintiffs to demonstrate in designated areas on Capitol grounds. For good cause, it is ORDERED that the November 5, 2021 hearing is cancelled and that the motion for a temporary restraining order and injunction is denied as moot without prejudice to refiling if the State somehow reneges on the issuance of a permit. The parties are encouraged to file a joint motion to dismiss after the Plaintiffs' demonstration at the Capitol takes place

For more on the case, see this post. Congratulations to Alan Gura (Institute for Free Speech) on the victory.