Published in Philosophy and Social Action, Vol. 20, Nos. 1-2, January-June 1994, pp. 13-24. Pdf of published article
Reprinted in Jeff Shantz (editor), Protest and Punishment: The Repression of Resistance in the Era of Neoliberal Globalization (Durham, NC: Carolina Academic Press, 2012), pp. 15-28
An earlier version appeared in Human Rights Commission, The Right of Peaceful Protest Seminar, Canberra, 3-4 July 1986 Papers, Occasional Paper No. 14 (Canberra: Australian Government Publishing Service, 1986), pp. 93-117
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The idea of 'protest' typically evokes images of a dissident minority taking a public stand, as in rallies against particular wars or blockades against logging of a rainforest. Protest is usually associated with groups that are outside the mainstream, that lack inside connections with the wielders of power. Protest is often 'against' something or other, an attempt to stop a policy or practice which would otherwise go ahead unquestioned. To many people, protesters have a bad image: the rabble in the streets. Although the vast majority of protest activity in liberal democracies is nonviolent in reality and intent, an aura of actual or potential violence commonly accompanies media presentations and popular perceptions of protest. These images are part of an overall view which balances the 'right to protest' against a need for 'law and order.'
The conventional presentation of protest by the media, by government and by academics (cf. Gamson, 1975; Mauss, 1975) focuses on political activity by a particular segment of the population. Protest activity is assumed to be problematical, whereas other political processes are taken as less so. To gain a wider perspective on what is normally called protest, it is useful to step back and take a look at the whole political system.
The liberal state serves to govern and to uphold the system of capitalism based on private property. Liberal democracy is essentially liberal society plus the democratic franchise (Macpherson, 1972).
The dominant political actors in liberal democracies are the state, corporations and professions. Routine activities by these actors establish the ongoing political and economic framework for the society. Governments promote legislation, establish foreign policy and decide on policy. State bureaucracies both prepare and implement policies, and exercise administrative discretion in areas such as policing, welfare and the law. The electoral system ensures a ritualised competition between political parties (Ginsberg, 1982).
Corporations routinely make investments, hire and fire employees, introduce new products and services, and mould opinion through advertising. Professions hold monopolies on particular types of services--such as medical and legal services--and within those monopolies make decisions about the types and costs of services (Derber et al., 1990; Larson, 1977).
Permeating the dominant political stage are several organising principles, including hierarchy, the division of labour and male and white domination. Hierarchy and the division of labour are the key features of bureaucracy; most parts of the state and large corporations are organised bureaucratically, as are political parties. Almost all of the most powerful individuals within the state, corporations and professions are white men: women and ethnic minorities are marginalised.
Dominant groups occasionally engage in struggles with each other, as in the case of elections, corporate takeovers and the medical profession's resistance to state regulation. The actions of these groups are not usually called protest, though. The term protest is applied to actions of groups that are painted as outside the mainstream. When trade unions go on strike that is recognised as a form of political protest--and often stigmatised--but when corporations redirect investments out of a particular area (a 'capital strike') that is taken to be a normal exercise of corporate prerogatives. When peace activists purposefully break a regulation to block a train carrying nuclear materials, that is civil disobedience. When government departments fail to provide information by mandatory deadlines, when corporations continually flout environmental regulations, when prison warders beat prisoners or when ex-husbands refuse to pay child support, that is seen as cause for concern but is not categorised as civil disobedience.
For the most part, the activities of dominant political groups are nonviolent. Liberal democracies are not held together by brute force, but are sustained largely by acquiescence or support from relevant groups in society (Edelman, 1971; Gramsci, 1971; Sharp, 1973). Even the major political struggles in liberal democracies, such as between workers and employers, are usually about the balance of power within the system, not about the organising principles of the system itself. Nevertheless, the dominant institutions are backed in the last resort by force, namely by the police and the military. Whereas violence by 'protesters' is invariably condemned and often called terrorism, violence by the police or military is usually seen as legitimate.
The full power of the state can be employed against those individuals and groups placed in the category of protesters. Direct action against the military, such as opposing conscription or encouraging desertion, can result in prison terms; recalcitrant trade unions may be threatened with deregistration. By contrast, prison terms for corrupt politicians or corporate executives are seldom contemplated (Barak, 1991); non-cooperative professions are never threatened with deregistration, nor are corporations ever threatened with deregistration of private property (Parkin, 1979). The asymmetry is clear: the law and state power backed by force are used to thwart those who challenge dominant groups and used to protect institutions such as private property and hierarchical authority which sustain those same dominant groups.
The issue of protest arises when open challenges to existing social structures are made by members and supporters of weaker groups in society, such as workers, women and minorities. Such challenges are singled out for special attention, unlike the usual political manoeuvres of dominant groups. Student radicalism is portrayed as a much greater cause for concern than routine dealings by firms.
At this stage it may be useful to define a few terms. The 'normal channels' of political action in a liberal democracy are those associated with the electoral system: voting, participating in political parties, lobbying and writing letters to politicians. All these methods involve trying to get someone else--usually the government--to take action on an issue. 'Direct action,' by contrast, is political action which does not act through some other group as intermediary. Examples are sit-ins, strikes and boycotts. Many actions aim both to achieve immediate aims and to influence the government, such as rallies and hunger strikes.
'Nonviolence' refers to actions which do not by themselves cause physical harm to humans, whereas 'violence' refers to those which do. If police attack and harm nonresisting demonstrators, it is the police who are violent, not the demonstrators. Whether violence to property counts as 'violence' is an issue that has often been debated.
'Civil disobedience' can be defined as nonviolent direct action that breaks a law. Theorists of liberal democracy usually consider political actions to fall into the category of legitimate civil disobedience if they are deliberate, nonviolent, non-revolutionary, done in public and done mainly to educate or persuade the majority (Zashin, 1972:110).
The usual point of view of the dominant groups is that people should leave social problems to the elites and experts. If action isn't happening quickly enough, then they should work through 'normal channels.' The trouble with these channels is that they are biased in favour of privileged groups. Native Americans as a group can hardly get ahead by rising up through corporations or professions, since it is discrimination in such areas which is the cause of many of their problems. Lobbying holds little hope, since lobbying is mainly of benefit to those who have money, power or some other reason why their views should be listened to. (Arguing on the basis of social justice alone doesn't get lobbyists very far.) Finally, Native Americans, as a stigmatised minority group, have little electoral impact.
Because the 'normal channels' are biased, it is not surprising that excluded groups turn to direct action to pursue their causes. I have argued that dominant groups regularly use direct action. Direct action by outsider groups is seen differently because it is a threat to the usual acquiescence on which the political system is based. Because it comes from groups within the society, it holds the potential of undermining the system by eroding its legitimacy. By contrast, outside attack tends to mobilise and unify a society, which is why appeal to the fear of foreign enemies is regularly used to mobilise the population against internal dissidents.
So far I have argued that the category of protest selects out the actions of only certain groups in society for scrutiny, leaving analogous actions by powerful groups unexamined. But governments do more than simply scrutinise protest; they limit and control it in a variety of ways: by attempting to define it in a limited way, by requiring protest to be to the government, by controlling issues symbolically and by restricting protest to the 'public sphere.'
Defining protest in a narrow fashion is one way to ensure that it poses no threat to established institutions and social relations. Debates about protest are relevant here. Is civil disobedience ever justified? Must civil disobedience be nonviolent? Do disobedients have a responsibility to accept punishment according to the law? Can the liberal state survive in the face of widespread challenges to its legal authority? These are the sorts of questions that exercise political philosophers.
Before commenting on some of these questions, it is fruitful to look at the debate itself. Far from being solely an academic analysis of the political process, the debate over the right of protest is part of the wider political struggle of which protest is only one part. Those analysts who take a limited view of the rights of protest are entering the struggle in a way which supports dominant groups. Those who argue for a broader view of which sorts of protest are legitimate are entering the struggle in a way that supports those groups for whom protest is a method of overcoming powerlessness in orthodox channels.
For example, are secondary boycotts a legitimate form of political action? Should they be legal or illegal? Should penalties be lenient or harsh? The answers to these questions arrived at by various scholars and pundits are tools in the struggle between employers and workers.
The intellectual arguments about civil disobedience have been presented many times, with no agreement reached (Cohen, 1971; Singer, 1973; Zinn, 1968). The key factor causing differences in conclusions is the assumption about the legitimacy of the state. Those who assume the primacy and legitimacy of the state invariably take a narrow view of civil disobedience; those who question the state take a broader view.
Is it morally legitimate to break just laws in order to protest against unjust ones? For example, is it legitimate to block traffic if one agrees with traffic ordinances but wants to protest against laws against homosexuality? A narrow perspective, which requires civil disobedience not to challenge and hence undermine respect for valid laws, answers no. A broad perspective, which sees civil disobedience as part of a wider struggle for social justice, answers yes.
Must civil disobedients accept any legal punishment as right which is imposed for their violation of the law? A narrow perspective, which puts acquiescence to the law and the state as an unquestionable priority, answers yes. A broad perspective, which puts pursuit of justice above acquiescence to the law and the state and hence questions punishment as well as the unjust law, answers no.
Must civil disobedience be nonviolent? A narrow perspective, which is built on the assumption of the state monopoly over legitimate violence, answers yes. A broad perspective, which weighs state violence against countervailing violence without exempting either from moral judgement, answers no. (A broad perspective does not necessarily favour violence, since violence is often counterproductive. Rather, it does not accept the double standard of automatically condemning protester violence while justifying or ignoring state violence.)
These examples show that the intellectual arguments about civil disobedience are part of a wider struggle in which the authority and power of the state are at stake. But the existence of the wider struggle is usually submerged, especially by those defending the state. By castigating protesters as disruptive, violent and illegitimate, critics are engaging in a political struggle against the goals of the protesters; by basing their arguments on the unquestioned premise of the legitimacy of state power, they hide their own de facto commitments to particular parties to the struggle.
Another shortcoming of the theory of liberal society is its assumption of a degree of democracy that does not exist in practice. Without a more participatory democracy than provided by the electoral system, the usual liberal arguments about the political obligations of citizens hold little weight (Pateman, 1979).
The intellectual jousting about protest is fascinating, but just as important is the practical political response of governments as a method of limiting and controlling challenging groups. Protest is not a great threat to the power of the state so long as the protest challenges only policies and not the institutions of the state itself. The most effective way for governments to ensure that this happens is to appear to respond, usually by some form of symbolic action such as studying the issue, preparing legislation or setting up an inquiry (Edelman, 1971). Most protest movements do not have the organisational or economic foundation to 'sit out' an issue and wait for normal processes to take account of the problem.
A million people marched for peace in New York in 1982, but this did not lead to any substantive changes in government policy. Instead, responses to the peace movement were in the form of 'arms control initiatives,' the 'strategic defense initiative,' and other symbolic stands which served to convince many people that the government was doing something to promote peace, while the key parts of its military stance were left unaltered (Myrdal, 1976). Even when governments are elected to power on a particular platform, they are regularly able to disengage from commitments made earlier in the face of widespread social unrest (Miliband, 1969).
The government strategy for limiting and controlling protest is based on an implicit restriction of the protest: it must be protest to the state to take action, not autonomous action itself. It is when protesters take direct action which in itself furthers their aims (rather than relying on the government to do it for them) that this action is commonly seen as 'out of hand.' Workers may lobby and demonstrate for industrial democracy; that can be tolerated. It is when they unilaterally implement it themselves on the shopfloor that police are brought in. Concerned citizens can appeal to the government to end abuses by spy agencies; that is fine. But when they investigate the agencies themselves and publish the identity of spies and details of their operations, it is time for legislation and harassment to stop them.
Another important assumption about protest is that it is something that occurs in a narrow 'public sphere.' In a public rally, individuals show their personal concern by their presence and their collective concern by their numbers. In quite a few cases, numbers provide protection from victimisation. But there are other types of protest that, while not unlawful, can result in severe penalties to the dissident. Protest within corporations and state bureaucracies is a case in point.
Both large corporations and government bodies are organised in the form of bureaucracies, that is built on hierarchy and a division of labour. Bureaucracies are very much like authoritarian states, the main difference being that most bureaucracies have only nonviolent sanctions to apply against internal opposition (Weinstein, 1979). Within classical bureaucracies, there is no room for protest; what happens in practice is that dissidents are ignored at best and vilified and dismissed at worst. In between there are the possibilities of blocked promotion, transfer to undesireable posts, character assassination and demotion. A large number of case histories show that these responses are the usual pattern.
A. Ernest Fitzgerald, who blew the whistle on military cost overruns, had formal rights, but this did not protect him from harassment (Fitzgerald, 1972). Very few government employees are willing to take a strong public stand on an issue which might jeopardise their career, and for good reason: Fitzgerald's own example, among others, stands as a warning to them. What then of the many activities that, while not illegal, would mean risking one's job and reputation, and for which there is no protection against victimisation? Workers are dismissed because of their organising activities, or simply for complaining about conditions; scientists are cautioned about speaking out about environmentally destructive effects of industry; students know that their future careers may be held back if they become too conspicuous in radical political activities; employees are suppressed because they exposed or threatened to expose unsavoury practices by their bosses (Ewing, 1977; Glazer and Glazer 1989; Martin et al., 1986; Peters and Branch, 1972).
Most employees realise the dangers involved in speaking out, and most of them remain quiet. Mass protest in the 'public sphere' then becomes restricted to 'safe' issues--such as peace marches in the 1980s--for which there is so much public support that most participants cannot be victimised (though conspicuous radicals in the movements still may be). On other issues, which are much more risky for those with jobs and reputations to lose, a disproportionate number of those who take public stands tend to be students, the unemployed, activists in community groups and others who have less to lose by being identified as protesters. The negative image of many protests results from the ingrained fear of protesting felt by many people, which leaves the field to those few who are willing to take the risks of protesting and who are perceived as 'fringe' elements of the population.
A final problem is inequality of resources. Ernest Fitzgerald was a single person trying to do his own job plus make informed criticisms of Defense Department performance. In attempting to discredit Fitzgerald, officials in the Defense Department could call on virtually unlimited funds and personnel to mount refutations.
The above ideological and material constraints on protest are serious enough: they ensure a sizeable gulf between protesters and those who make the crucial decisions in society, ensuring in most cases that protest can be restricted to the margins and either ignored or bought off with minor changes in policy. But in case this is not enough, there is a more direct and ruthless way of dealing with dissent: repression.
The use of repressive means to stifle dissent within a liberal democracy has been a routine occurrence, but the implications of this for arguments about 'the right of peaceful protest' are seldom raised. If the state represses dissent, this undermines the arguments that protesters should first work through orthodox channels and should remain nonviolent and otherwise follow the strictures of the constitutionally-minded theorists on civil disobedience. The reality of repression undercuts the liberal assumption of a free and pluralist society and provides support for the idea that protest, and arguments about the justification of protest, are part of a wider political struggle.
There is a wide variety of measures taken in liberal democracies to repress political opposition. Most of these measures are taken by agencies of the state, especially by the police and the military which are the custodians of legitimate violence. The role of repression is a major one (Goldstein, 1978; Wolfe, 1973) but has been downplayed by most theorists of liberal society (McCamant, 1984).
The development of secret spying operations has been a conspicuous feature of states since Napoleon (Plate and Darvi, 1983). Although sometimes initially set up to deal with criminals or violent enemies of the state, the usual tendency has been for these agencies to increasingly focus on formally legitimate opposition movements. In some cases direct attempts are made to cause disruption in the opposition, as in the FBI's Cointelpro program (Blackstock, 1976). But even the collection of material and compilation of dossiers on members of political parties, trade unions, anti-nuclear groups and women's groups effectively operate to stifle dissent, simply because many people become apprehensive about taking conspicuous political action of any sort. The frequent jokes and concerns by members of community action groups about telephones being tapped are symptomatic of the inhibiting effect of spying.
Political censorship is an effective method of stifling dissent. There are a limited number of examples outside wartime in which Western governments take overt action to censor publications, such as the Progressive case (Morland, 1981). It is not so much formal censorship as unofficial agreements that are important in keeping certain issues out of the mass media. The D-notice government censorship system in Britain and Australia is an example. The key here is the role of the mass media--television, radio and large newspapers and magazines--which are the main source of information for the bulk of the population. The existence of small dissident presses often can be ignored if the information they present does not reach a wider audience. On a number of crucial issues the top executives of the mass media are reluctant to go out of their way to antagonise the government and powerful corporations (Bagdikian, 1990; Herman and Chomsky, 1988). For example, the Indonesian invasion and brutal policies in East Timor were almost entirely excluded from the mass media in the United States; the issue was one which was far away, and to pursue it would have been to antagonise the US government, the direct source of a great deal of news (Chomsky and Herman, 1979). (On the other hand, the mass media sometimes mount powerful challenges to government practices, including government repression.)
Harsh legal penalties can be used to repress protest. It is widely recognised that the legal systems do not dispense neutral justice, but rather that arrest, conviction and sentencing are all part of a wider political struggle. Corporate crimes are often ignored or at most dealt with by token fines. Protest of a political nature on the other hand often is greeted with excessive penalties. One reason for the decline of the direct action campaign by British peace activists in the early 1960s was the heavy prison sentences given to civil disobedients (Young, 1977). In the 1980s in the United States, a number of activists who have entered military facilities and performed symbolic minor damage in nuclear facilities (hammering nose cones and pouring blood over files) have been given jail sentences of 10 years or more, as reported in the journal The Nuclear Resister.
Another way to smash dissent is to selectively enforce laws. Laws in some countries against use or sale of certain drugs are now so extreme that they could not possibly be enforced against even a fraction of violators. It is not unknown for political activists to be charged for using marijuana and given years or even decades in prison. When taken in conjunction with widespread police corruption, including trade in illicit drugs, such actions expose the facileness of the argument that civil disobedience should be circumscribed because it undermines respect for the law.
Spying, censorship and selective use of the law all serve to inhibit political opposition. But such opposition still occurs, and when it becomes strong it is often met by direct police or military attack. Police monitoring and occasional attacks on demonstrators have become a commonplace in many countries. The military is brought in when the police are insufficient, most notably to break strikes. Also, the police in conjunction with spying agencies have sometimes been used to crush dissident movements, such as the FBI's virtual extermination of the leadership of the Black Panther Party.
Direct police and military repression of social movements has occurred when these movements have become threats to dominant interest groups. For example, in the US from about 1880 to 1920, the police were regularly used to smash worker opposition to capitalist exploitation (Bowden, 1978). In the 1970s and 1980s, massive police operations in France and West Germany were used to disrupt protests against nuclear power, a technology heavily promoted by the governments of those countries. A conclusion frequently drawn from such experiences is that protest is allowed so long as it doesn't have much impact. Once protest on a massive scale develops in way that threatens powerful interests in or allied to the state, police or military force is brought to bear against it. That protest is part of a wider political struggle is apparent in this double standard.
Challenges to the police and military are the most fundamental threat to the liberal state, and hence have been met with the most severe repression. Opposition to conscription is a basic challenge to the state mobilisation of the population for violence, and hence this form of protest has been dealt with severely in most countries even in 'peacetime.' In wartime civil liberties of all sorts are drastically curtailed, so much so that a liberal democracy at war can be characterised as a 'constitutional dictatorship' (Rossiter, 1948). Rights of free speech, assembly, protection from arbitrary arrest, the right of trial by jury: these and other freedoms are reduced or removed in wartime (Linfield, 1990).
The standard argument in favour of this abridgement of freedom is that liberal democracies temporarily must become dictatorships to protect their long-term viability as democracies. While this appears to have been the case in Britain and the United States during the world wars, it is also true that martial law imposed to mobilise against an external enemy has often been used against internal opponents. During and after World War I the powerful socialist movements in Europe were crushed by the governments there, a process enabled by the mobilisation of force against all those who opposed the war effort. After World War II, the cold war provided the context in the US for a witchhunt of dissidents in trade unions, the media, education and elsewhere (Belfrage, 1973; Caute, 1978).
Finally there is the imposition of military dictatorships, something that has occurred in numerous countries in recent decades, including in countries with long traditions of liberal democracy such as Uruguay and Chile. Terrorism by states is a much greater problem than the small amount of non-state terrorism (George, 1991; Herman, 1982; Stohl and Lopez, 1984; Wright, 1991). The continuing danger of military dictatorship points to a fundamental flaw in the liberal democratic state's ultimate reliance on violence to protect itself from challenge: who guards the police and military guardians of society? If the police and military are brought in to repress any fundamental challenge to the status quo, the extension of this process is military dictatorship rather than social change.
The usual discussions of 'peaceful protest' ignore the vital role of state repression. An awareness of this repression exposes the narrowness of focussing on the actions of protesters and the immediate legal or moral context in which they operate. Rather than analyse protest solely in terms of rights, it can more usefully be seen in the context of a wide social struggle in which both the legitimacy and practice of action and nonaction and of violence and nonviolence are at stake.
Far from destabilising democracy, protest has been instrumental in forcing the introduction of most of the freedoms that now exist in liberal democracies. Direct action, mostly nonviolent, played a major role in the ending of slavery, extension of the franchise, curtailing ruthless aspects of the exploitation of labour and extending rights to women and minorities. Many of the so-called normal channels for working through the system, which are often recommended as prior to or preferable to direct action, have themselves been established through direct action. Many of the constitutions which embody the rights and restrictions which have come to be identified with the status quo were established not in calm contemplation but in the aftermath of social revolution or turmoil (Carter, 1973) .
Rather than the usual questions about how to deal with protest, social scientists should consider whether to continue with the intellectual category of protest at all, given its association with a skewed picture of society and social action. Even when social scientists are quite aware of the assumptions associated with their own use of the concept, many of those reading their works will be encouraged to treat the actions of only some groups in society as problematical. Moreover, the concept of protest is associated with long-standing debates about ethics, such as the legitimacy of violence, which implicitly omit the behaviour of dominant groups from examination. The existence of categories can encourage particular directions for research; in this case the often-noted attention by social scientists to relatively powerless rather than powerful groups is both cause and consequence of the conceptual apparatus available.
Extending the terminology of Chomsky and Herman (1979), what is usually called protest could be referred to as 'retail protest' while the routine exercise of direct action by dominant groups could be called 'wholesale protest.' The very incongruity of this proposal testifies to the loaded nature of the concept 'protest.'
I thank Robin Handley, Richard Joseph, Carole Pateman and Stephanie Short for valuable comments on a draft of this paper. I also benefited from a prior reading of the paper by Peter Jones and Claire Runciman.
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