Kristi Noem’s Free-Speech Hypocrisy

E arlier this month, a federal judge ruled that South Dakota governor Kristi Noem violated the First Amendment rights of anti-vaccine-mandate protesters back in November. Last week, Dakota News Now’s Austin Goss reported:

A federal judge has ordered the state of South Dakota to pay lawyers for the “Blue State Refugees” $37,503 after it was found that the Noem Administration violated the organization’s First Amendment rights.

In a 12 page opinion, Judge Roberto Lange, the Chief Judge of the U.S. District Court for South Dakota, ordered the state to pay the amount following a denial of a permit to protest on State Capitol grounds.

Last November, members of the “Blue State Refugees,” an organization made up of out-of-state transplants to South Dakota from more heavily Democratic areas, attempted to get a permit to protest for more COVID-19 vaccine exemptions on State Capitol grounds.

The Bureau of Administration, tasked with issuing permits to organizations looking to utilize state facilities, denied that permit request, citing Christmas decorating going on in the Capitol.

There was just one problem: According to its own guidelines, the South Dakota state government could not restrict protests during the time period that the Blue State Refugees had applied for a permit. The state’s guidelines specified that protest permits could be restricted due to Christmas decorating after Thanksgiving — an already constitutionally dubious measure — but “they told people as early as late October that the Capitol grounds would be unavailable” for protest permits, Alan Gura, the vice president of litigation for the Institute for Free Speech, which represented the plaintiffs in the case, told National Review. “The restrictions applied to Thanksgiving week through New Year’s,” Gura said. And even there, “All it said is that the public areas are reserved inside the Capitol building for activities and events related to the Christmas display. It says nothing about events outside the building, which is where Blue State Refugees wanted to be.”

On top of paying the plaintiffs’ legal fees, the South Dakota government was also “required to change their guidelines, which they did,” Gura said. “And the guidelines are a lot better now. The court ordered them to adopt guidelines that provide that the restrictions on the time and place of assembly, speech and petition are narrowly tailored to advance the state’s significant interest consistent with the First Amendment of the Constitution of the United States of America.” The updated guidelines specify that “only one Non-State event per day per location will be approved” during the time period, rather than just one “event per day,” as well as mandating that “no application will be approved or denied based on the content” and “any approved application for use of the Capitol complex will not prevent any use by the general public.”

But why was Noem’s government so intent on preventing the Blue State Refugee protests in the first place? “We wanted to peacefully protest,” Luke Robertson, a member of Blue State Refugees who was named as a plaintiff in the case, told National Review. “We didn’t want to storm the Capitol. We just wanted to go to the Capitol — that’s the place to go when you want to have a redress of grievances. But it seems like she doesn’t care about our First Amendment rights if the issue we’re protesting for is something that she doesn’t agree with.”

Indeed, Noem has been the subject of harsh criticism from some conservatives for her opposition to a ban on private vaccine mandates. Although she signed an executive order banning any government agencies in South Dakota from mandating vaccines last April, the governor earned the ire of many in her state when she came out as a staunch opponent of legislation protecting unvaccinated individuals from employment termination or other kinds of discrimination at the hands of private businesses. Noem justified this position in an August 2021 Washington Times op-ed, which argued that “government is too big, and mandates are not a conservative tool in forcing the behavior of its citizens. . . . Even if I agree with a new mandate, that mandate limits freedom and sets a precedent for even more mandates, taxes, spending, and expansion of government into the daily lives of average Americans who just want to be left alone.”

This argument struck a notably different tone from that of other prominent Republican governors such as Ron DeSantis and Greg Abbott, who both signed legislation banning businesses from requiring proof of vaccination for employees and patrons. That’s a contrast that Noem seemed eager to make: “You can’t be a constitutional conservative only when it suits you,” she wrote in the opening to her Washington Times article. “Some so-called conservatives want to regulate businesses to prevent them from requiring a COVID-19 vaccine as a condition of employment. . . . It’s up to pro-liberty conservatives to stand on principle and to stand up to government mandates.” 

Whether or not Noem’s stance was right on principle, critics argued that the effects of her policy would be disastrous for vaccine-hesitant South Dakotans. Members of Blue State Refugees “all just kind of landed here in South Dakota, most of us for the same reason — because we’re very concerned about where the rest of the country, especially the coasts, are headed with regard to medical freedom,” Robertson said. “And whether or not you agree on vaccines, whether they help or they harm, I don’t really care. But I just don’t want you to force that on me.”

Last year, some South Dakota lawmakers responded to this mounting concern by introducing legislation mirroring the private vaccine-mandate bans seen in states such as Texas and Florida. Jon Hansen and Scott Odenbach, Republicans in the South Dakota state house of representatives, co-authored the “COVID-19 Vaccine Freedom of Conscience Act,” a bill proposing to effectively ban vaccination requirements for private as well as public institutions. But amid public calls for a special legislative session to debate the bill, Noem lashed out at critics of her position.

In an August 2021 video posted to Noem’s Twitter and Facebook, she called out Hansen and Odenbach by name. “It is not conservative to tell businesses what to do and how to treat their employees,” said Noem. “Most of the Republican legislators get that in South Dakota — they get that. But there are the vocal few, like Jon Hansen and Scott Odenbach, who are chasing headlines and are trying to tell South Dakotans how to do business. They want to make government bigger and more powerful in your life. It’s like a wolf in sheep’s clothing.” That was followed by a bizarre set of angry tweets that Noem lobbed at conservative commentator Matt Walsh on Twitter just a day later, accusing Walsh of having “stooped to horrible misogyny” in his criticisms of the governor, and writing that “I was roping bulls (maybe he’s a steer?) bigger than him when I was in my teens. He couldn’t walk a day in my shoes.”

There’s a distinct irony in the fact that a governor who touts her principled commitment to “liberty” was willing to violate the First Amendment rights of South Dakotans when the exercise of those rights became inconvenient.

“I’m just an average Joe,” Robertson said. “I’m a software engineer, I work with computers, I have a farm where I raise chickens and pigs. Like, I don’t want to get involved in this stuff. This isn’t my comfort zone, and it’s not fun for me. It’s not like I am itching for opportunities to sue big government. I just want to be on my farm and be left alone. But when I see injustice, when I see our rights stripped away, I can’t just sit idly by.”

Noem’s office did not respond to a request for comment.