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.

Comments

[mulched]

Well, that's a happy ending. Just like me and Gov. Kristi.

[TwelveInchPianist]

Seems like the case was resolved very quickly, leaving Gov. Kristi disappointed.

[mulched]

That's what she said. Through her lawyers.

[Rev. Arthur L. Kirkland]

Antisocial, poorly educated misfits have rights, too. Those rights should be vindicated no matter how deplorable the people and message associated with protected expression might be.

[Gandydancer]

^^^^^^^
Lest anyone think Kookland is for once actually footnoting a claim, the Asshole is just linking to a Youtube video.

[Rev. Arthur L. Kirkland]

Careful, there . . . The Volokh Conspiracy enforces civility standards. At least, that is what the proprietor claims in writing when he is censoring non-conservatives.

[VinniUSMC]

Damn, I just had to be not signed in when I navigated to this post to see Kirkland's asinine commentary.

No, Kirkland, those civility standards are not just enforced on non-conservatives, or in favor of conservatives. Else you would find many more posts in response to your garbage.

[TwelveInchPianist]

And back when the civility standards were enforced, they were forced as much by Prof Kerr as by Prof Volokh, so perhaps that's where Kirkland's beef is.

[Rev. Arthur L. Kirkland]

Prof. Kerr never censored me (or, so far as I know, anyone else).

But Prof. Volokh has censored me repeatedly. Which he is entitled to do. His playground, his rules.

His viewpoint-driven, partisan censorship of liberals and libertarians, however, makes his 'free speech champion' pose as unconvincing as his silly faux libertarian strut.

[Life of Brian]

I've had posts removed. So have others. Grow up.

[Rev. Arthur L. Kirkland]

Did you have a post removed (1) for using a term such as 'c_p succ_r' or 'sl_ck-j_wed' to refer to conservatives or (2) for threatening to place liberals face-down in landfills; gas liberals en masse; shoot liberals in the face as they open front doors; or send liberals to Zyklon showers.

That's right -- Prof. Eugene Volokh forbids and vanishes descriptions of conservatives as 'sl_ck-j_ws' and 'c_p succ_rs, and has expressly doubled down on such partisan, viewpoint-driven censorship. Yet he publishes vile racial slurs regularly -- whenever he can find a plausible opportunity -- and lathers his conservative followers into doing the same. He also plays the matador with respect to violent threats against liberals and libertarians, waving them through regularly.

All of which he is entitled to do. But not while posing as a free speech champion or a 'libertarianish often libertarian' rather than as a standard-issue movement conservative clinger with a selectively heavy hand on the censorship button.

The more his sycophants struggle to defend their censorship-loving right-wing hero, the more I will recount the situation. Until the Volokh Conspiracy (1) bans me entirely or (2) apologizes, acknowledges error, and pledges to do better.

Carry on, clingers.

[Paul256]

No problem. Just pass a law letting any person sue any demonstrator for $10,000.

[Sidney r finkel]

While this Forum focuses primarily on actions by Progressives to limit speech, the situation described in the post is just more evidence that the desire to censure speech one finds objectionable in terms of the politics exists independent of political positions.

[Rev. Arthur L. Kirkland]

Just ask the Volokh Conspiracy's right-wing Board of Censors!

[Dan Schiavetta]

Those trees better be pretty damn beautiful when this ban is lifted!

[Rev. Arthur L. Kirkland]

They might well be. Winsome trees may be among the few things South Dakota has going for it these days.