PIERRE, S.D. (KELO) — A group who filed suit against Gov. Kristi Noem and other state officials after being denied a permit to hold an anti-vaccine mandate rally at the Capitol in Pierre has claimed victory.

In a statement titled “Victory: Blue State Refugees Rally to Proceed in South Dakota,” the Institute for Free Speech (IFS) which represented the Blue State Refugees (BSR) group announced the state had agreed to allow their event to proceed during the Legislature’s special session on Monday and Tuesday.

The details of the decision are outlined in a Nov. 5 opinion and order by U.S. District Judge Roberto Lange cancelling the previously scheduled hearing and denying the group’s request for an injunction as moot.

In the order, Lange outlines the facts of the case: BSR had requested a permit to demonstrate on the State Capitol grounds on November 8 and 9, during a special session of the South Dakota Legislature. The intent of the demonstration is to support legislation that would bar employers, educational institutions, and businesses from requiring vaccination from COVID-19.

BSR claims the permit was denied by the South Dakota Bureau of Administration (BOA) who stated that no demonstrations or gatherings are permitted anywhere on State Capitol grounds from November to
December due to the state decorating for Christmas and holding its annual Christmas tree display.

On Nov. 5, the BOA announced they would be allowing the BSR to hold their event.

Within the order, Lange outlines on several occasions that under the letter of the First Amendment, the BSR and IFS “initially demonstrated a likelihood of success on the merits of their claims.” This is due in large part to the broad scope of the state’s reasoning for denying the permit.

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.

U.S. District Judge Roberto Lange

Lange outlined that while the goals of the group may not be valid or constitutional, their right to demonstrate is, writing the following.

Although the Plaintiffs’ advocacy may be wrong-headed in supporting legislation of dubious constitutionality, neither this Court nor the State can discriminate based on the content of the Plaintiffs’ proposed speech. The public interest generally is served by allowing the free exercise of First Amendment rights.

U.S. District Judge Roberto Lange