NEW YORK, UNITED STATES - APRIL 23: "Gaza Solidarity Encampment" at Columbia University entered its one-week in New York, United States on April 23, 2024. (Photo by Selcuk Acar/Anadolu via Getty Images)
Artillery Row

A right to protest?

The right to dissent is often at odds with the will of the mob

An idea has circulated that has no origin, rational logic, or historical basis: “the right to protest”. I don’t know when or how, but at some point along the long road of moralistic individualism, it suddenly became self-evident to a generation of progressives that disruptive, even illegal and destructive protest should be regarded as a human right; one that should carry no criminal penalty. 

When Columbia students chose to illegally camp in the middle of their campus until the University agreed to divest from any companies associated with Israel, they were expressing more than just a political view. The behaviour, language and conduct of the students reflected a new culture of protest, especially dominant in the academy. Not only was the tent city disruptive and illegal, many complained that Jewish students felt intimidated by the protestors, as well drawing extreme activists from outside to the highly publicised protest. Facing widespread criticism that has included President Joe Biden himself, the university president finally called in the cops. 

The ugly side of protest is hardly new, but accompanying it was a novel sense of entitlement. Slate reported on the academic consequences of occupying the grounds of the private university as if they were human rights abuses: “Some Barnard students had been suspended; the Columbia students were awaiting a similar fate. Those suspended face losing access to campus housing, health care, student dining facilities, and more, along with the inability to finish out the semester, all without so much as a hearing.” 

In its worst forms, it is the action of irrational mobs, who riot, loot and kill

One student involved in the protest, and an editor of the student paper, described police intervention (after months of sustained protests had been tolerated by the university) in the following terms: “the university introduced security forces to disrupt peaceful protest…it is scary because it feels like campus has been handed over to the police. It almost feels like a military coup”. The idea that illegal (if peaceful) activity by students, sustained over months, and sewing disruption and division, might merit a police response is seen as terrifying and fascistic. The assumed attitude of contemporary students is that there is a “right to protest”, especially on campus. 

Superficially, this seems like an old liberty to many on the liberal left, because it justifies itself in similar language to the freedom to dissent, a concept that “protest” has largely eclipsed. But in reality, dissent and protest are not merely distinct ideas, they may even be opposed ones in many instances (as Jewish and pro-Israel students at Columbia could no doubt attest). 

The confusion of these two ideas speaks to a fundamental shift in how contemporary liberalism operates, a move away from policy to performance. The essence of civil liberty: our freedoms of association, speech, and conscience, have been confused with one possible element of their expression: placard waving street protest. Liberal values have given way to liberal aesthetics. 

Freedom of speech and association authorises peaceful and non-disruptive political activity, but there is no “right” to stand outside your political foe’s house with a megaphone, or occupy your university’s buildings, or lie down in front of traffic. There never has been. In fact, all three of these are likely to constitute crimes. 

In a free society, protest occurs at the margins of our liberties — either when they are threatened, or in the chaotic churn between democratic sentiment and the limits placed upon it. Protest is not really a “right” in the sense of a freedom recognised by the state, but rather the assertion of political power by a mass of persons. In its best form, as with the civil rights movement, it is a principled and peaceful, though disruptive, assertion of common dignity with concrete and constructive aims. In its worst forms, it is the action of irrational mobs, who riot, loot and kill. 

As the action of a crowd, protest can just as easily oppress liberty as uphold it. A mob can harass or terrorise an individual. It can disrupt the legal activities of businesses, political parties or religious organisations with which a group of protestors disagree. When protest is violent or threatening, it tends to lose even its democratic element, allowing an aggressive minority to impose its will. The persecution of Salman Rushdie and Charlie Hebdo by Islamists is an example of this. 

The alignment of protest with liberty seems natural to a generation that grew up with women’s liberation and the civil rights movement. But the totalitarian strain in protest was always there. For all the success of Martin Luther King’s peaceful (but disruptive) protests, radical black nationalists were not above using bombs, guns and kidnapping to further the cause, and promoted separatism, and even supremacism, rather than equality. 

The protests at Columbia are not about securing civil rights, but rather about seeking to impose a political agenda on the university; one that many students and faculty fundamentally disagree with, and involves a country and a conflict thousands of miles away which it has little hope of influencing. 

Similarly, climate protestors who block roads or hold up trains are targeting an unrelated third party, because they claim their cause is so morally urgent that it demands that people be “woken up” to it by extreme means. 

Disruptive, even illegal protest, can be a brave act that awakens us to our moral duties. But when morality and policy is contested, attempting to coerce opponents ends up undermining the basis of a democratic society. A well understood element of protest is that activists demonstrate the seriousness of their cause by risking and suffering severe legal consequences to make their point. They force the state to punish them in the hopes of changing public opinion. Whatever the obnoxiousness of disruptive protest, the willingness of activists to risk life and liberty gives their mission a nobility and moral seriousness that we should respect.

But that expectation, and sense of nobility, is utterly undermined by the idea that there is a “right to protest”. A typical example of this sort of idea was a Guardian article lamenting that a German climate activist, one Marcus Decker, who had climbed up the Queen Elizabeth II Bridge, disrupting traffic for 37 hours, was imprisoned for 16 months and now faces deportation. One can argue, of course, about the relative leniency that should be shown to those who disrupt traffic or trespass on public infrastructure, and the appropriateness of automatic deportations for foreign criminals. But this is not the argument that those like George Monbiot make. They suggest that protestors should be given more lenient treatment than common criminals. 

In other words, if a German immigrant has one too many Pilsners and clambers up a bridge he should face a stiffer sentence than if he ascends the same structure in the name of a political cause. But far from the British legal profession being an army of bewigged oppressors, many seem to agree with Monbiot, with climate protestors often receiving more lenient sentences than non-activist offenders. 

It is hard to avoid the feeling that articulate, middle class activists are being permitted to break the law

One judge in 2022 let a group of protestors who had glued themselves to the M25 (and a police car) off with a fine, telling them that they had “inspired me and personally I intend to do what I can to reduce my own impact on the planet, so to that extent your voices are certainly heard”. In 2023 a group of Just Stop Oil protestors, two of whom had glued themselves to a Van Gogh only days before, risked causing a fatal accident by rushing on to the Silverstone F1 track during a race, yet got away with suspended sentences and community service. A representative of Just Stop Oil praised the judge for the “lenient sentences”, saying “I think the judge has reflected that he recognises that ordinary people are trying to protect the future of humanity and therefore the sentence has been fairly lenient and we’re pleased about that”. 

In 2020, at a trial of Extinction Rebellion protestors, a judge said that “This is going to be my last Extinction Rebellion trial for a little while. I think they only allow us to do so many of these before our sympathies start to overwhelm us.

“When I started, I was fully expecting to see the usual crowd of anarchists and communists.

“I have to say I have been totally overwhelmed by all the defendants. It is such a pleasure to deal with people so different from all of the people I deal with in my regular life.

What made them so different? What was it about nature writer Jay Griffiths (given a conditional discharge), Professor Colin Davis of Bristol University and Christian minister Dr John Andrews (both acquitted), that set them apart from the “usual crowd of anarchists”?

The rise of protest politics is a sign of a polarised and fractured society

Though the idea of leniency to idealistic protestors is superficially appealing, it is hard to avoid the feeling that articulate, middle class activists are being permitted to break the law — inconveniencing and endangering ordinary people in the process — whilst poorer, less powerful and less educated lawbreakers face stiff sentences for the same behaviour. When protestors do occasionally receive sentences in line with ordinary sentencing guidelines, petitions are signed and editorials penned. 

The idea of a civil right to protest goes beyond the merely hypocritical; it has a sinister dimension when you consider that activists are seeking to take issues outside of the democratic political process rather than making interventions into it. At the same time, rather than forwarding individual liberty, many are seeking to restrict that of others.

This former was especially visible in the ECHR ruling which upheld the claim that Switzerland had breached the human rights of elderly citizens by failing to cut carbon emissions. Apart from the incredible indirectness of this claim — Switzerland is responsible for 2 per cent of global emissions — there was also no recognition that this is a political question that involves trade offs. Even if we did accept that Switzerland could affect the risk of heat waves via cutting its paltry share of emissions, the means by which it reduces them could have far greater impacts on its citizens. Its unusually large carbon footprint is largely a product of national wealth, which sees Swiss consumers import a disproportionate share of the world’s goods. 

Should imports be made more expensive, and citizens poorer? Should the price of electricity and fuel, as activists demand, reflect the costs to the environment? Whatever the merits of such a trade off, it can hardly be resolved by rights language, and must be argued in the political arena. But when protest is sacralised, ideological causes are lifted out of politics and anointed as universal rights, regardless of the costs that these “rights” impose on ordinary people, whether in higher cost of living, or disruptive protests. 

The rise of protest politics is a sign of a polarised and fractured society. Increasingly activists have as their intended audience not a general public whom they are seeking to persuade, but rather a governing class which they are attempting to coerce or guilt into doing their bidding. The attempt to bypass the political process is a statement of a loss of trust in society in general. In the words of Marcus Decker, “respectable” tactics had failed, he had tried “using music to raise awareness, petitions, writing to my representatives”. Only direct action could prevail, reported Monbiot, against an “oppressive system”. 

As with many rightwing populists, however fairly we might condemn the dysfunctions of British politics and democracy (and they are legion), when we obscurely denounce “the system” and call for an authoritative deus ex machina to clean it up, we are acting as vandals and not saviours of our democracy. Rather than denouncing and browbeating one another, we have to relearn a language of mutual respect and common endeavour — to persuade and not just protest. 

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