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Friday, May 03, 2024

"Peaceful Protest" and "Non-Violent Protest"

Campus protest season is winding down, unevenly, unprettily, and sometimes unlawfully, and for a variety of reasons, not least the academic calendar, which is the eternal annual balm for campus unrest. My views on the propriety of the conduct of both protesters (and counter-protesters) and universities are determined and bounded by my sense of  the First Amendment's demands, and also by my sense of the role of universities and the norms that should govern in that institutional space. But I would like to make one point.  

The point may feel somewhat semantic, but it clearly feeds into the understandings of both the participants and the wider public. The phrase du jour was "peaceful protests." That's a pretty imperfect phrase, or at least one that requires further specification. It seems to me to elide the difference between "peaceful protest" and "non-violent protest." At least based on what I have read, there is an excellent argument that the vast majority of protests and protesters were engaged in non-violent protest. Of course one can engage, if one wishes, in arguments about what constitutes "violent" protest, with potential pushback from two sides. One is the conventional contemporary argument that violence to property can never be considered violent as such. As a strictly intuitive matter--as a question of how I would fit some example into my perhaps eccentric mental schema--I doubt I'd think of spraying graffiti on a building as "violent" simply because it constituted damage to property. I would think of shattering the windows of a building or breaking down its doors for purposes of breaking into and occupying it as "violent," even if no people are harmed. I would think of it in those terms, not to put too fine a point on it, because it is violent, and the argument to the contrary is bosh. From the other side comes the argument that any protest, or any slogan, that is emotionally or psychically harmful to some audience is violent. I am equally unpersuaded by this line of argument. Whether "from the river to the sea" is a just slogan or a stupid one, it is not "violence."  

But there's a difference between "non-violent" and "peaceful," I think. And the statement that many protests were non-violent but not necessarily peaceful seems like an accurate summation--and one that's more accurate than simply using the blanket description "peaceful protests." Of course many protests were both peaceful and non-violent. But if, as was sometimes the case, protests were sufficiently loud and disruptive; if students, faculty, or staff were prevented from going whither they would on campus, sometimes because a space was occupied and sometimes by a degree of mobbing; or, no doubt, if other conditions were met--then I think it would be more accurate to call those protests non-violent than to call them peaceful. (Likewise, many counter-protesters were non-violent but not peaceful. I would add that I began writing this post a few days ago, before recent counter-protester action that was clearly and disturbingly violent.)

Is it a side issue? Yes and no. The First Amendment protects protest in many ways, just as it generally protects many other forms of expression. And it generally draws the line at violent activity, not just for protest but for other forms of expressive conduct. But there is no absolutely protected category of "peaceful protest," not least because "peaceful expression," whether in general or with respect to protest in particular, is not in itself an absolutely protected category. It is always potentially subject to any number of limitations. Not least among them is the difference between public and private property, but even on public property that has been since "time out of mind" used for protests and other forms of assembly, there are, among other things, permissible time, place, and manner restrictions. One may argue quite reasonably that the permissible spaces for that expression have shrunk, and that the courts should take a different and more expansive and protective approach to speech in those spaces. But it is beyond question that permissible limitations existed even when the courts were at their high-water mark in lauding and protecting protest, and would even if the legal landscape changed.

In that sense, what to call the campus protests is, legally speaking, close to irrelevant, although both the protesters and others seemed to place a great premium on the allegedly sacrosanct legal status of "peaceful protest." But a protest has always been, and certainly is these days, not just a thing in itself, but an object for media consumption, in which it is not just described, but branded, marketed, and propagandized from all directions. To convey and sell a mental picture of utter placidity and harmlessness, it is more useful to call a protest "peaceful" than merely, and somewhat pregnantly, "non-violent." The protesters, and their advocates (among whom I count myself as to some but not all of their conduct), surely appreciated this. More accurately, probably, some of them appreciated the strategic value of the right label and thus pushed "peaceful protest," and many others simply absorbed it and took it for granted. But it's an imperfect label and we should question it, regardless of one's conclusions about the legality or morality of particular protests.

One other point. I try to avoid the Other Place, but someone sent me a tweet by Scott Shapiro, a legal theorist at Yale, who wrote, "Now that Hamilton Hall has been cleared, Columbia students can go to class and learn about the glories of liberalism." Far be it from me to argue with a legal philosopher, or just about anyone else, about the nature of liberalism and its merits and demerits. And quips on Twitter, along with anything else written there, should not be paid undue attention. But it seems to me this quip nicely achieves two layers of irony. The first is what I assume is the obvious and intended one. The second-layer irony, however, is that whatever else one might say about the manner of retaking Hamilton Hall from those who occupied it, the general fact of retaking a university building that has been forcefully occupied by students, and doing so through the threat or use of state force, is entirely consistent with liberalism. Perhaps the second layer was intended too, even if its audience does not seem to have appreciated it that way. Of course one is free, in our liberal society, to make up one's own mind about whether this counts for or against liberalism.     

Posted by Paul Horwitz on May 3, 2024 at 11:08 AM in Paul Horwitz | Permalink


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