Protest Problems

In​ If We Burn, a history of protest between 2010 and 2020, Vincent Bevins writes that the decade ‘surpassed any other in the history of human civilisation in its number of mass street demonstrations’. The responses to Black Lives Matter, Covid-19 restrictions and most recently the Israel-Hamas war suggest this decade may be just as tumultuous. Yet many governments are restricting the right of assembly. The trend is unsurprising among authoritarians who have abandoned any pretence of toleration (think of Putin after the invasion of Ukraine or Beijing’s clampdown in Hong Kong after 2019). But states that have a real claim to be democracies are also enacting new restrictions, targeting people, possessions and proclamations. In Bavaria, climate protesters were locked up for thirty days so that the Munich Motor Show could proceed undisturbed. In the UK, people can be arrested for carrying objects suitable for ‘locking on’. In Germany, it’s now illegal to hold a placard with certain words relating to Israel and Palestine. The new restrictions also concern places. Protesters aren’t allowed near politically significant locations and are instead shunted to ‘buffers’ and ‘bubbles’, or to designated ‘free speech zones’ (which make other areas speech-free zones). Both the legal and the physical space for protest is being shrunk.

The right to assemble was explicitly codified in the First Amendment to the US Constitution, though it’s now often conflated with free speech (the Supreme Court hasn’t heard a case on free assembly in four decades). The French National Assembly’s Declaration of the Rights of Man and of the Citizen left it out altogether, perhaps reflecting a suspicion, inspired by Rousseau, that different people demonstrating for different causes amounts to factionalism and therefore undermines the republic. There is no mention of freedom of assembly in the constitution of the Fifth Republic either. As for the UK, ‘it can hardly be said that our constitution knows of such a thing as any specific right of public meetings,’ the British jurist A.V. Dicey wrote in 1885. The Tumultuous Petitioning Act of 1661 was only repealed in 1986.

Even where the right to freedom of assembly has been officially recognised, it has been shadowed by anti-democratic prejudices about mass politics. Many states require permission to be sought in advance and all have the power to restrict or ban assemblies in the name of public order. Protesters can also be prohibited from using certain kinds of place. Up until the late 1930s, US jurists held that the government was, among other things, a property owner; hence, like all property owners, it could prevent people from trespassing. A new doctrine emerged according to which streets, squares and parks constituted a ‘public forum’. This relied on tradition: places that had been used for demonstrations in the past would remain open to the people. But such traditionalism leaves little room for innovation. Shopping malls and airports are off limits; after all, the Founding Fathers never used them.

Not all jurisdictions are hostile to the idea of protesters getting in the faces of shoppers or tourists. In a landmark decision in 2011, the German constitutional court allowed leaflets (directed against deportations) to be handed out in the publicly accessible areas of Frankfurt airport. The judges said that ‘the wish to create a “feel-good atmosphere” in a sphere which is strictly reserved for consumer purposes and which remains free from political discussions and social conflicts cannot be used as the basis for prohibiting the distribution of leaflets.’ Even more acerbically, they added that ‘the state may not restrict fundamental rights in order to ensure that the carefree mood of citizens is not disturbed by the misery of the world.’

Using unconventional spaces for protest is one way to avoid demonstrations becoming predictable and easy to ignore. Deviating from standard American jurisprudence, the New Jersey Supreme Court declared in 1994 that ‘if the people have left for the shopping centres, our constitutional right includes the right to go there, too, to follow them and to talk to them.’ Making malls into public squares is justified in part because more and more public spaces are becoming ‘malled’, that is, becoming privately owned public places (a particularly egregious example is the area in front of London’s City Hall, which is owned by Kuwait’s sovereign wealth fund). In Paris, the left traditionally marches between République and Nation. But the gilets jaunes rejected this système manifestant. They occupied roundabouts, making the case – as with their bright vests – that some citizens weren’t being seen by the Macron government (which was indeed caught off-guard). The roundabouts also symbolised a main source of grievance, the increase in the price of diesel.

The provision of space for protest tells us how comfortable a democracy is with street politics. In the mid-1960s, the British architect Cedric Price produced a design for a Pop-Up Parliament, which would have replaced the Palace of Westminster. It had a ‘rally area’, with underfloor heating and nylon coverings protecting protesters from the rain. In contrast to the many zoning laws or ‘authorised assembly areas’ (a term used in Canberra), which suggest that the public is seen as a threat, Price’s design made clear to demonstrators that they were welcome.

Getting close to government buildings can be a crucial factor in ensuring the success of a protest. Considering the period since the end of the Cold War, the social scientist Mark Beissinger noted that ‘urban revolutionary episodes that have engaged in rallies, protests or processions in public space have had a significantly higher rate of success than those which engage in other tactics but do not use demonstrations – irrespective of the level of mass participation involved.’ More important still, he found that proximity to political authorities is a significant factor for the outcome of these ‘episodes’: ‘A majority of successful urban civic revolts occurred within seven hundred metres of the seat of power. By contrast, a majority of failed urban civic episodes occurred at least 2.9 kilometres from the seat of power.’

Demonstrations in halfway functioning democracies are not the same as protests that call for the overthrow of autocrats. But the logic is similar. Proximity to power-holders makes protesters more visible and disruption more effective; yet by making themselves visible – and making a nuisance – they also invite repression. Of course, democracies reject repression, at least on paper, and most of them do recognise the ‘sight and sound’ rights of assemblies: it’s legitimate to demand that politicians or other power-holders should see and hear demonstrators. The US is a glaring exception. In the land of the free, protest can be tidied away in ‘demonstration zones’.

Most democracies also recognise that protesters shouldn’t be exposed to excessive financial costs or legal risks. Clean-up and security are largely paid for by the state. Permits shouldn’t be too expensive, or else the state in effect taxes those who wish to use public space for protest while everyone else uses it for free. Again, the US is an outlier. Republican state legislatures have proved inventive, especially since the rallies in response to the murder of George Floyd. The legal scholar Timothy Zick has documented the new civil penalties that can be imposed on demonstrators. When an unidentified person threw a rock at a Black Lives Matter protest in Baton Rouge, injuring a police officer, the BLM activist DeRay McKesson was sued under the novel theory of ‘negligent protest’. If such a concept became widely accepted, any organiser would be liable for damages even if they had in no way encouraged violence. In response to the Keystone Pipeline protests, meanwhile, the South Dakota legislature came up with the notion of ‘riot boosting’: the idea that anyone who trains protesters can be sued if assemblies result in damage to property. Other innovations include protecting drivers who run negligently over protesters and trying to make participants in actions declared to be ‘riots’ ineligible for benefits such as housing and student loans.

Then there is the increasing militarisation of America’s traditional ‘public forums’. When Trump’s defence secretary Mark Esper called in 2020 for the administration to ‘dominate the battle space’, he meant streets and squares in US cities. That year, police used tear gas against peaceful protesters in at least a hundred American cities. (The less peaceful rioters at the Capitol on 6 January 2021 were described by Trump as ‘great patriots’.) The trend is away from negotiation and towards the tactics of ‘escalated force’ and ‘command and control’. Court decisions have shown that police forces and municipalities aiming at Esper-style domination are largely immune from suits for civil damages.

In the UK, the new Public Order Act and other measures – mainly aimed at Extinction Rebellion and other climate protesters – have not only introduced new restrictions, they have also made the language around demonstrations extremely vague, leaving police officers baffled as to what is allowed and what isn’t. As well as ‘locking on’, new offences include ‘tunnelling’ and the extremely broad category of ‘interference in key national infrastructure’, which in practice has meant arresting people disrupting ‘transport road infrastructure’. It has become easier to stop and search even where there are no specific grounds for suspicion. The arrests during the coronation showed that the police are themselves unsure which objects are supposed to count as instruments for locking on; uncertainty makes arrests more likely. As the British legal scholar Richard Martin has pointed out, the police already had extensive powers for dealing with protesters, including on roads. The new measures, which Priti Patel claimed would prevent ‘eco-warriors trampling over our way of life and draining police resources’, appear designed to discourage assembly. A peaceful protester who has come by bike can’t be sure that their bike lock won’t end up providing grounds for arrest.

In Germany, the weeks after the 7 October terror attacks saw the banning of many pro-Palestine demonstrations, even in cases where there seemed to be no evidence of an imminent danger to public safety or of expressions of antisemitism. The bans appear to continue a troubling trend of limiting commemoration of the Nakba in Berlin. After the interior ministry made all activities relating to Hamas illegal in early November, lawyers were left puzzled as to whether the words ‘From the river to the sea’ constituted a criminal offence in all circumstances. The ministry, in a sloppily written announcement, appeared to suggest that the phrase was uniquely tied to Hamas; the Berlin police agree with this reading, as do public prosecutors in other federal states. At certain rallies, the number of Palestinian flags has been restricted; chanting has only been allowed if initiated from a stage; and protesters have reported being detained simply for wearing the keffiyeh. One state minister suggested that only German citizens should have the right to organise protests (the constitution specifies Germans, but the relevant federal law refers to ‘everybody’); another minister wondered if speaking German could be made mandatory at demonstrations. Suella Braverman’s attempt to have the police treat all pro-Palestinian marches in the UK as ‘hate marches’ could become a reality in Germany.

Contrary to what internet enthusiasts may argue, assembly in physical space remains fundamental for democracy. That’s partly because existing inequalities are often compounded online. Those rich in resources can also use the web more effectively; the sociologist Jen Schradie has even suggested that the internet is a medium best suited to conservatives. As the US Supreme Court recognised in the 1940s, assembly is crucial for ‘the poorly financed causes of little people’. The greater the turnout at a gathering, the more force an issue has. Leaders in the American civil rights movement often invoked ‘the sheer significance of our numbers’, a point proved by the inflated figures given for Trump’s inauguration. The success of assemblies is determined by what Charles Tilly called ‘WUNC’: worthiness, unity, numbers and commitment. Citizens are willing to shoulder costs or even hardships to get to a particular place, and by appearing in public they also make themselves vulnerable. Numbers in squares don’t invalidate numbers in ballot boxes – but, as the German jurist Christoph Möllers has written, while demonstrations don’t have democratic form, they do have democratic meaning.

In the US, tolerance for protests has diminished over time. There was much greater willingness to put up with rowdy demonstrations in the 19th century – not to speak of the aftermath of the revolution, when even relatively conservative figures were willing to call mobs ‘constitutional’ and Jefferson advised Madison that ‘a little rebellion now and then is a good thing.’ A sanitised version of the civil rights movement has made us forget the extent to which civil rights leaders relied on disruption.

Protest is, of course, not the same as civil disobedience – that is, open and deliberate law breaking. And it is disobedience, driven by the climate emergency, that has provoked most of the backlash against protest in democracies. In Germany, Klimakleber from the Last Generation movement glue themselves to roads, enraging commuters. Members of the group are being investigated by state authorities on suspicion of forming or supporting a ‘criminal organisation’; if they are found guilty, the penalties for future disruption will be much more severe. Unlike making noise or accosting people in malls, such protests involve coercion. (It’s anyway debatable whether angering people who are trying to get to work is the best strategy for defeating the fossil fuel industry; the climate theorist and activist Andreas Malm doesn’t think it is.)

In the 1960s, mainstream liberal philosophers such as John Rawls recognised the legitimacy of breaking the law in a spectacular fashion to sway majorities; in the early 1980s, Jürgen Habermas defended resorting to illegal means to stop the stationing of new nuclear weapons. These lessons appear to have been forgotten in an age when the far right, centre-right and a centre-left desperate to prove that it’s ‘responsible’ have united around law and order rhetoric. It is because of this illiberal consensus that a fundamental civic principle must be reiterated. Democracy means sharing space with people whom we find annoying, and who sometimes deliberately annoy us. But like it or not, we have to have the right to get in each other’s faces.