Protest and Dissent

NOMOS LXII

Melissa Schwartzberg

• Publisher: NYU Press
• Year: 2020
• ISBN:
  9781479848003
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Essays on the justification, strategy, and limits of mass protests and political dissent

In Protest and Dissent, the latest installment of the NOMOS series, distinguished scholars from the fields of political science, law, and philosophy provide a fresh, interdisciplinary perspective on the potential—and limits—of mass protest and disobedience in today’s age.

Featuring ten timely essays, the contributors address a number of contemporary movements, from Black Lives Matter and the Women’s March, to Occupy Wall Street and Standing Rock. Ultimately, this volume challenges us to re-imagine the boundaries between civil and uncivil disagreement, political reform and radical transformation, and democratic ends and means.

Protest and Dissent offers thought-provoking insights into a new era of political resistance.

Part I

Justifying Civil and Uncivil Disobedience

1

Uncivil Disobedience

Candice Delmas

The suffragettes smashed the windows of London’s shopping district, vandalized the Royal Botanic Gardens, cut telephone and telegraph wires, and burned post boxes all over the UK in demand of the franchise.

In the midst of the Arab Spring, “Operation Tunisia” saw the hacktivist collective Anonymous conduct a series of distributed-denial-of-service (DDoS) actions against the Tunisian government’s websites in solidarity with pro-democracy activists.

Wearing sleeveless dresses and colorful balaclavas and stockings, members of the Russian feminist band Pussy Riot stormed Moscow’s Christ the Savior Cathedral and staged a “Punk Prayer” that called for President Vladimir Putin’s removal.

Members of the Sanctuary movement provide unauthorized migrants with food, shelter, and legal aid throughout Europe and North America, and sometimes help them cross borders.

Animal Liberation Front (ALF) activists break into labs, farm factories, and kill shelters to rescue the animals held in these facilities.

Edward Snowden stole 1.7 million classified documents, leaking 200,000 of those to journalists to blow the whistle on the National Security Agency (NSA)’s massive domestic and international surveillance program.

Thousands of protesters poured into the streets of South-Central Los Angeles after a jury acquitted the police officers charged with beating Rodney King. Arsons, lootings, and assaults occurred over the next several days.

The actors involved in these seven vignettes—the suffragettes, Anonymous, Pussy Riot, Sanctuary workers, ALF activists, Snowden, and LA protesters—broke the law on the basis of moral or political principles, determined to take a stand in response to what they perceived as injustice or wrongdoing. Their disobedience took otherwise very different forms, occurred in different societal contexts, and pursued different goals. Actors were seen by officials as “insane,” “traitors,” “thugs,” and even “terrorists.”1 But one thing they have in common—and which motivates my reflection in this chapter—is that their sympathizers have described them as instances of civil disobedience.2

There are obvious reasons why those wishing to establish the bona fides of acts of disobedience like those just described call them civil. The label serves to highlight the agent’s principled motivations and communicative intentions; to make a disruptive breach of law intelligible as an address to the community; to situate the act in a venerable historical tradition, populated by the likes of Rosa Parks and Martin Luther King Jr.—and thus, given these positive connotations, to begin the work of its justification. Nevertheless, it is easy for opponents to deny that the label applies to activities that are, say, covert, violent, or offensive, since civil disobedience is commonly understood to be public, nonviolent, and respectful, among other essential traits. Opponents usually take it for granted that unlawful resistant activities that fail to satisfy the defining criteria of civil disobedience cannot be morally justified in near-just, legitimate societies (of which ours is one, in their view).

In response, sympathizers adopt one of two strategies. They either operate with the standard understanding of civil disobedience but try to downplay the inconvenient feature in question; or they use a different, broader concept, according to which said feature is not a sine qua non of civil disobedience. Either way, the debates tend to get stuck at the level of definition and classification. Instead I propose to concede—even embrace—the uncivil nature of these activities and defend their potential justification.

On the one hand, I share sympathizers’ urge to make room for acts of principled disobedience like the ones above; and I, too, want to articulate an approach that is (a) sympathetic, to wit, open to the justification of the principled breach of law they consider; and (b) politically useful—able to contribute positively to the public discourse (as sympathizers’ two main approaches to civil disobedience purport to be). But I propose to add a third desideratum of accounts of principled disobedience, which sympathizers tend to neglect: (c) phenomenological accuracy, or the capacity to reflect at least to some extent practitioners’ own views of their activities.

On the other hand, I agree with opponents that the activities above were not civil; and I think that the most promising route to a sympathetic, politically useful, and phenomenologically accurate account of the activities found in the seven vignettes involves granting their incivility and focusing on their distinct potential justification. What we need is an account of uncivil disobedience. It is an important first step toward the justification of types of uncivil disobedience, that is, of particular cross-sections of the dimensions of incivility we’ll identify.

The chapter proceeds as follows. The first section explains the problems with the two main approaches to civil disobedience and sketches a basic conceptual account of uncivil disobedience. The rest of the chapter seeks to defend the permissibility of at least some forms of uncivil disobedience even in supposedly legitimate, liberal democratic states like ours: the second section argues that uncivil disobedience can do much of what civil disobedience does, while the third section argues that uncivil disobedience can do and say valuable things that civil disobedience cannot do or say.

Conceptual Issues

Standard Account of Civil Disobedience

Following John Rawls’s influential account, civil disobedience is commonly understood as a conscientious, nonviolent, public, respectful breach of law intended to protest and call for the reform of a law or policy, and for which the agent takes full legal responsibility.3 An act of principled disobedience that fails to be civil in these ways cannot be justified in a near-just society. Some of the theorists and pundits who described Anonymous’s DDoS actions, Snowden’s leaks, and the suffragettes’ destruction of property as instances of civil disobedience did so using this common understanding of civil disobedience. Sympathizers of Snowden, and Snowden himself, even invited the comparison of his whistle-blowing with the civil disobedience campaigns organized by Martin Luther King Jr.—the paragon of civil disobedience in the United States. While potentially sympathetic and useful, this approach hasn’t been terribly successful, for an obvious reason: the suffragettes, Anonymous, and Snowden clearly violated the defining criteria of civil disobedience just mentioned, since they resorted to violence, sought to conceal their identity, pursued more radical or different goals than reform, and/or evaded arrest and punishment, among other issues.

Consequently, the standard account doesn’t align with acts of principled disobedience like the ones above. This is not surprising, since it doesn’t align well with its own paradigms, either. Civil rights campaigns such as the Good Friday march in Birmingham (which violated a court order), lunch counter sit-ins, and Freedom Rides shaped the standard account and appeared to satisfy many of Rawls’s demanding criteria. They appealed to constitutional principles of political morality and pursued modest goals of reform, not revolution. Activists thoroughly trained in and committed to nonviolence disobeyed the law publicly, often giving authorities advance notice of their plans. They responded to state and mob violence peacefully and willingly submitted to arrest and jail for their lawbreaking.

So why did the Rawlsian account nonetheless fail to adequately describe them? Rawls understood publicity to require that agents give authorities fair notice of their planned disobedient activity, act in public, and appeal to the community’s shared conception of justice. He took nonviolence to exclude the use of force and coercion and the direct infliction of harm against persons. (Other theorists explicitly prohibit property destruction.) But Rawls also insisted that agents of civil disobedience, unlike rebels and revolutionaries, accept, and even seek out, the legal consequences of their actions, because doing so would demonstrate their general “fidelity to law”—their endorsement of the system’s legitimacy and belief that the state generates a moral duty to obey the law.

As David Lyons has persuasively argued, the standard account wrongly—that is, implausibly and objectionably—ascribed these attitudes and beliefs to civil disobedients whose choices in fact were primarily strategic.4 King denied that the United States of Jim Crow deserved respect and called for the complete eradication of the caste system, which he deemed “unjust” and “evil.”5 His famous insistence, in the Letter from a Birmingham City Jail, that civil disobedience expresses the “highest respect for law,” has been widely misunderstood. It appears in the context of his discussion of natural law’s tenet that “an unjust law is no law at all” and can only be properly understood to enjoin respect for just law, as opposed to deference to any law at all by virtue of its being a law. King also conceived of submission to arrest and punishment in symbolic terms, as a “powerful and just weapon,” as in the “Fill the Jails” campaign, and as a matter of prudence, given that civil rights activists were outnumbered and outgunned.6

In short, the Civil Rights Movement adopted its particular style of civil disobedience for largely context-dependent, tactical purposes. Yet theorists and pundits turned these tactics into deep moral commitments on the part of agents supposedly eager to demonstrate their endorsement of the state’s legitimacy and placed these subjective requirements at the core of their defense of real-world civil disobedience. Theorists’ defense of civil disobedience thus contributed to and reinforced an official, idealized narrative of the Civil Rights Movement that largely misrepresents the history of the black freedom struggle post–World War II. Its focus on the nonviolent Civil Rights Movement came at the expense of ignoring other, more radical groups, such as the Black Panther Party, the Deacons for Defense and Justice, black feminist and Marxist groups, with the effect of only recognizing state-legitimizing, nonviolent movements. At stake is not just historical accuracy: The standard conception of civil disobedience continues to be called on as a benchmark by which to assess other disobedient movements. A deeply conservative history of the black freedom struggle is thus intertwined with a theory of civil disobedience that demands respect for authority and deters resistance.7

To sum up, it’s easy to deny that acts of principled disobedience satisfy the criteria of civil disobedience. Indeed, as I suggested, paradigmatic cases of civil disobedience themselves violate those, making the standard account less than useful. As a result, and despite the intentions of some of its champions, the account doesn’t serve well protesters’ cause; instead it holds them to narrow and demanding standards that they rarely ever meet.

Inclusive Accounts of Civil Disobedience

Dissatisfied with the standard Rawlsian account, theorists have put forth “inclusive” approaches that broaden the concept of civil disobedience to encompass all sorts of principled lawbreaking. Kimberley Brownlee offers one such account. She problematizes the conceptual distinctions standardly drawn between civil disobedience and other types of dissent, noting that civil disobedients may intend a revolution and that conscientious objectors often seek broad reform and not simply personal exemption. For Brownlee, civil disobedience “must include a deliberate breach of law taken on the basis of steadfast personal commitment in order to communicate our condemnation of a law or policy to a relevantly placed audience.”8 This kind of civil disobedience need not be public or nonviolent. What sets it apart from ordinary crime, radical protests, and private conscientious objection (or “personal disobedience” in her terminology) are its constrained, communicative, and non-evasive properti...