US Protest Law Tracker

The US Protest Law Tracker, part of ICNL’s US Program, follows initiatives at the state and federal level since November 2016 that restrict the right to peaceful assembly. For information about our methodology, click here.

40 states have
considered
138 bills
25 enacted 2 enacted with
improvements
24 pending 87 defeated or
expired

No initiatives
Pending, defeated or expired initiatives
Enacted initiatives

Legislation and executive orders

Latest updates: Nov. 21, 2020 (New Jersey, Oklahoma), Nov. 13, 2020 (Ohio), Oct. 16, 2020 (New York)
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South Dakota

SB 151: New penalties for protests near pipelines and other infrastructure

Would heighten the penalties for protests near oil and gas pipelines and other infrastructure. Under the bill, knowingly trespassing on property containing a critical infrastructure facility is a misdemeanor punishable by a year in prison and a $2000 fine. Knowingly tampering with any property and as a direct result either causing “substantial interruption or impairment” to a critical infrastructure facility or interfering, inhibiting, or impeding the maintenance or construction of a critical infrastructure facility is a felony punishable by two years in prison and/or a $4000 fine. Knowingly tampering or interfering with the operation or maintenance of a critical infrastructure facility that causes physical injury or death is punishable by ten years in prison and a $20,000 fine. A person or organization found to be a “conspirator” in any of the above provision faces a range of criminal fines. Any owner, lessee, or operator of any critical infrastructure facility where a crime is committed under one of the above provisions is designated a “victim” under South Dakota law, which entitles them to restitution and a set of victims’ rights. As such, a company that owns a critical infrastructure facility can seek restitution from a person convicted of any of the above provisions as well as from any conspirator. (See full text of bill here)

Status: enacted

Introduced 4 Feb 2020; Approved by Senate 27 February 2020; Approved by House 9 March 2020; Signed by Governor March 18 2020

Issue(s): conspiracy, infrastructure, trespass

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South Dakota

HB 1117: New criminal and civil liability for "incitement to riot"

Would revise the state’s laws on rioting and replace a “riot-boosting” law that was passed last year but later blocked by a federal court as unconstitutional. The bill would revise the definition of “riot” under South Dakota law to be “any intentional use of force or violence by three or more persons, acting together and without authority of law, to cause any injury to any person or any damage to property.” Under the bill, “incitement to riot” would be a new felony offense, punishable by up to 5 years in prison and $10,000 in fines, and defined as conduct that “urges” three or more people to use force or violence to cause personal injury or property damage, if the force or violence is “imminent” and the urging is likely to “incite or produce” the force or violence. The bill defines “urging” to include “instigating, inciting, or directing,” but excludes “oral or written advocacy of ideas or expression of belief that does not urge… imminent force or violence.” Under the bill, individuals could additionally be civilly liable for riot and incitement to riot, enabling lawsuits against protesters by the state, counties, or municipalities. Both last year’s "riot-boosting" law and HB 1117 appear to target planned protests against construction of the Keystone XL pipeline. (See full text of bill here)

Status: enacted

Introduced 29 Jan 2020; Approved by House 18 February 2020; Approved by Senate 5 March 2020; Signed by Governor Noem 23 March 2020

Issue(s): riot

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South Dakota

SB 189: Expanded civil liability for protesters and protest funders

**Note: According to an October 24, 2019 settlement agreement that resulted from a constitutional challenge to SB189, the state will not enforce many of the provisions of the law that could be applied to peaceful protesters and organizations that support them.**
SB189 created new civil liability for “riot boosters.” South Dakota criminal law defines “riot” broadly such that it can cover some forms of peaceful protest; as originally enacted, SB189 created civil liability for a person or organization that “does not personally participate in any riot but directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence.” It was unclear what might have constituted “advice” or “encouragement” to carry out an act of force, such that an individual who shouted encouragement on the sidelines of a disruptive protest, or organizations that provided advice about conducting a peaceful but disruptive protest, might have been implicated. Following the October 24, 2019 settlement, the state will not enforce this provision.

Nonetheless, enforceable provisions of the law still establish civil liability for any person or organization that is advised or encouraged by another, and that “makes any threat to use force or violence, if accompanied by immediate power of execution” in a group of three or more persons. The state or a third party may sue the person or organization for extensive civil damages, including punitive damages. Further, enforceable provisions of the law provide that a person or organization is liable for “riot boosting” if they engage in it personally “or through any employee, agent, or subsidiary.” Accordingly, individuals, organizations, and funders may still be held civilly liable for substantial amounts of money for any involvement in a disruptive protest. Damages recovered by the state shall, according to the law, be deposited in a “riot boosting recovery fund,” which may be used to pay for the state’s response to disruptive protests. (See full text of bill here)

Status: enacted

Introduced 4 Mar 2019; Approved by Senate 7 March 2019; Approved by House 7 March 2019; Signed by Governor Noem 27 March 2019

Issue(s): damage costs, conspiracy, infrastructure, riot

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South Dakota

SB 176: Expanding governor’s power to restrict certain protests

Expands the governor’s authority to curtail protest activities on public lands and restricts protests that interfere with highway traffic. The law enables the governor and sheriff to prohibit gatherings of 20 or more people on public land, if the gathering might damage the land or interfere with the renter’s use of the land. The law enables South Dakota’s Department of Transportation to prohibit or otherwise restrict an individual or vehicle from stopping, standing, parking, or being present on any highway if it interferes with traffic. The law also expands the crime of trespass, providing that an individual who defies a posted order not to enter a zone where assembling has been prohibited would be guilty of criminal trespass. Obstructing traffic or committing criminal trespass are classified as Class 1 misdemeanors, punishable by one year in jail or a $2,000 fine, or both. (See full text of bill here)

Status: enacted

Introduced 3 Mar 2017; Governor Daugaard signed into law 14 March 2017

Issue(s): traffic interference, trespass

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South Dakota

HB 1288: New Powers to Suspend State Agency Rules during Protests

Would add “protests” and “disorderly conduct” to a list of disasters that could allow the Governor to suspend the rules of a state agency. Under the bill, the Governor could suspend the rules of any state agency if there is an emergency beyond local government capacity and the provisions of the rule would in “any way prevent, hinder, or delay necessary action” in managing protests or disorderly conduct. In South Dakota, “disorderly conduct” includes “making unreasonable noise” or obstructing vehicular or pedestrian traffic. This change would make it easier for the Governor to suspend state agency rules in response to protests. (See full text of bill here)

Status: defeated / expired

Introduced 6 Feb 2020.

Issue(s): state of emergency, traffic interference

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For more information about the Tracker, contact Elly Page at EPage@icnl.org.