An Appeal to the ‘Democratic Conscience of the State’
Won’t Get You Far

When I wrote about the J20 arrests and charges for Esquire in April 2017, for a mainstream readership, I appealed to a specific type of logic—a juridical one. I stressed the infirmity of the mass arrest in the law’s own terms, noting that the police failed in their duty to establish individualized probable cause (as if I would have been satisfied with the DC cops had they only been more precise in their targeting of window breakers). To communicate the injustice of the thing, and the danger its precedent posed, I talked about rights.

The arrests, I pointed out, citing civil rights organizations and constitutional lawyers, deployed collective punishment and abrogated First Amendment protections. Strategically, an appeal to free speech and assembly rights is appropriate and necessary in these cases. But as reactionary anti-protest repression heightens across the country, we do well to understand the risks and limits of a response framed by this rights discourse, which would honor only the rights of individuals who assemble in a manner deemed “peaceful” by the state.

While in cases where First Amendment activity is threatened, we may want to seek a rights defense in court, but our defense of dissent outside the courts should not be limited by what the state deems defensible by the metrics of protected rights. A rights discourse, for example, would not defend the deliverer of that glorious punch to Richard Spencer—it would, in fact, defend Spencer.

An overreliance on the language of First Amendment rights treats the state—the Trumpian, corporate, white supremacist state—as an interlocutor, instead of as an enemy. When we call upon the government to recognize our right to peaceful assembly, we appeal to the democratic conscience of the state. “A conscience,” as British cultural critic John Berger noted in a 1968 essay in the journal International Socialism, “which is very unlikely to exist.”

Berger highlighted a conflict inherent to the sort of public demonstrations that First Amendment rights aim to defend: “If the State authority is open to democratic influence, the demonstration will hardly be necessary; if it is not, it is unlikely to be influenced by an empty show of force containing no real threat.” It’s safe to say we live in a moment when it is clear and correct to distrust the state’s openness to democratic influence. Berger did not reject the significance of legal protests—which manage to show, in their peaceful numbers, the potential for revolutionary action (if very rarely)—but he saw their limitations insofar as they are empty shows of force unlikely to influence the state. A rights discourse, which is only useful to defend this sort of protest, will thus echo its main limitation:
defense of that which is no real threat to the powers that be.

The J20 cases don’t stand alone. In April 2017, two UN Human Rights Commission investigators issued a statement in response to the wave of bills introduced in over 19 states following Trump’s election, which can generously be deemed “anti-protest.” The experts noted an “alarming and undemocratic” trend. In Indiana, for example, Republicans proposed legislation to allow police to use “any means necessary” to remove protesters from a roadway; in Virginia, lawmakers introduced a bill that would make “unlawful assembly” after the police have ordered a crowd to disperse punishable with a year’s jail time; in North Dakota, Republicans proposed legislation to legalize running over protesters if they are blocking roadways. (Happily, all three bills failed.)

The investigators were particularly alarmed by an apparent failure in legal understanding running through the language of many of the proposed bills. Again and again, US lawmakers referred to the threat of “violent protest.” The UN experts demurred. “There can be no such thing in law as a violent protest,” the investigators wrote. “There are violent protesters who should be dealt with individually and appropriately by law enforcement. One person’s decision to resort to violence does not strip other protesters of their right to freedom of peaceful assembly. This right is not a collective right; it is held by each of us individually.”

In the unlikely event that any legislators listened or cared, a possible corrective course was made clear to appease these human rights concerns, prima facie, while maintaining a conspiratorial agenda to stifle dissent: edit the bill by finding and replacing “violent protest” with “violent protester(s).” As the DC prosecutors’ deployment of felony riot charges against the J20 defendants makes clear, while “violent protest” may be absent from the letter of the law, the idea is operative in police tactics and court proceedings. A riot charge inherently carries the risk of collective punishment, and the “violent protest” is de facto posited as the grounds to name “violent protesters” as members.

Defendants and lawyers in cases like those from J20 have every reason to call upon the logic of the UN statement to highlight the unconstitutionality of their mass arrest. But as a broader response to the crackdowns against dissent, the UN line is not only a blunt weapon, but one with unintended consequences. In response to heightened dissent, the state further criminalizes protest; liberals then call upon a discourse of individual rights, which is useful only to defend the very mode of protest least suited to challenging the sort of repressive government keen to criminalize protest: this is the conflict highlighted by Berger.

Under a rights framework, the state can have its punitive way with any protester if that protester has violated some mythical social contract with “bad” or “violent” behavior. This is dangerous in the current reality, forged by lawmakers who seek to criminalize all manner of protest activity.

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When we’re forced to play the state’s game—that is, to bring a case to court—there’s no avoiding state logic. A court doesn’t care that we don’t see property damage as violence. A strategy committed to convincing the state of the rights of “good protesters” might win some crucial battles in state houses and courts. But an ideology committed to the unique protection of “good protesters” (to be contrasted with “bad protesters”) presumes a status quo in which we do not need to fight.

The collapse of strategy (using a rights discourse in court) into ideology (believing that defending our rights delivers real justice) recalls author-activist Arundhati Roy’s concern that we’ve swapped a grand pursuit of justice for the far smaller demand of human rights. “Too often,” Roy writes in her 2016 collection Things that Can and Cannot Be Said, these rights “become the goal itself . . . Human rights takes history out of justice.” The entire J20 black bloc was part of a struggle for justice—an explicitly anti-capitalist and anti-racist march, aesthetically unified to show symbolic and rageful opposition to everything Trump represents, on the day of his inauguration. A window breaker is no less invested in justice than a “good protester,” but the individual rights discourse deployable in court is not designed to defend the former.

Reactionary state measures that abrogate individual rights produce a particular outrage from liberals, which takes the form of a certain shock. Time and again, since the beginning of the Trump presidency, I have seen political writers apoplectic over alleged rips in the Social Contract. They seem genuinely gobsmacked that the state can fall so far from its alleged foundation as a mutual agreement, forged by the will of equal pledgers. It’s an almost childish disbelief. A well-meaning tantrum. A child sent to her room with no supper. You can’t do this! I have rights! We had an agreement!

As if any state were ever birthed through peaceful agreement and democratic harmony. Is this not one of the most violent myths of the constitutional republic—that it constitutes us equally? Needless to say, it takes a certain position of privilege (or brainwashing, or both) to believe such a genealogy of state power. It’s almost the liberal version of “Make America Great Again”—an appeal to a state formation and history that never was.

Friedrich Nietzsche called such liberal contractualism a “romantic illusion.” He presented instead a far crueler story of state origin in which “a conqueror with the iron hand . . . suddenly, and violently, and bloodily” imposes order on a previously inchoate population. For Nietzsche, the problem with the “romantic illusion” of the social contract was not only that it was a myth, but that it was a myth, like Christianity, through which we live as if it were legitimized by an unquestionable authority.

The irony is that true believers in the social contract ought, according to their own political philosophy, to withdraw their submission to a government they believe has vitiated the contract’s terms. But faith in the ultimate legitimacy of the state, based in liberal contractualism, is inherently unrevolutionary: such belief relies on appeals to a government’s better nature. And while there is much panic about the social contract under threat, or torn, or in tatters, there’s no consistency regarding what actually constitutes its abrogation, or of what upholding the general will looks like. Are we talking Lockean or Rawlsian? A president without the popular vote? A racist prison industrial complex that disenfranchises and cages millions? The systematic roundup and removal of immigrants? Is everything legitimate except collusion with Russia?

Our rights to speak out and assemble are under attack, as the J20 arrests and numerous anti-protest bills made clear. But our defense of these rights always entails engaging on the state’s terms and on the presumption of its good faith. After the Second World War, philosopher Hannah Arendt pointed out the poverty of a notion of rights as something naturally conferred on any human simply by virtue of their existence. Arendt, then writing as a stateless refugee, saw how human rights served little use to those humans stripped of or denied citizenship. The idea that human rights are protected by an international community is still dependent on the negotiation, intervention and compliance of individual states. We cannot usefully talk of rights without Arendt’s famous and much-debated formulation of “the right to have rights.” If the phrase sounds question begging, that’s because it partly is: rights can only be conferred on those humans to whom rights are conferred. But simply put, Arendt understood that rights make no sense without recognition, and that this means recognition by state actors.

This is not to undermine, but rather to highlight, the importance of such recognition and the necessity to struggle for those who do not have it. Under Trump, this is especially daunting. But under any administration, an appeal to rights presumes the state’s conscience and fealty to the social contract. The use of a rights discourse to defend against repression must be strategic and will always be limited.

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When we focus too much on our rights to speak and assemble (beyond what is necessary when facing state charges and repression, as in the J20 and Standing Rock cases) our fight becomes atomized over the fact of assembly, rather than the reason for protest. Form above content. It’s a fulcrum that has well suited the far right in recent years—using the Trojan horse of free speech to bring genocidal, violent content to college campuses and city squares across America. The right of anyone to speak publicly, the neo-fascists say, is the very freedom that actual fascism would see decimated. And it is a line that has found a comfortable home with the liberal commentariat. This view finds its best iteration in that old quote so regularly misattributed to the French Enlightenment philosopher Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” (It was actually written by British Voltaire biographer Evelyn Beatrice Hall.)

It was on these grounds that the American Civil Liberties Union (ACLU) defended the Unite the Right rally’s right to demonstrate at Emancipation Park in Charlottesville—work for which the ur-liberal organization received censure from anti-racist activists, especially in the wake of the August 12 terror attack, in which a self-identified white supremacist rammed his car into a crowd of counterprotesters, killing 32-year-old activist Heather Heyer and injuring 19 others. In turn, liberal commentators have jumped to the defense of the civil liberties group and the need to defend robust constitutional rights.

Much of the anger at the ACLU stems from an understandable desire that this champion of liberal and righteous causes not give time nor resources to hatemongers. Which is to misunderstand that defending neo-Nazi speech is profoundly liberal work, however unrighteous. In defending the civil liberties of neo-Nazi organizers, the ACLU was just doing what they say they do. The mistake is to conflate and collapse the defense of liberties with the struggle for social justice (of which the fight for equal rights is only a part).

In an August 13, 2017 article for the Intercept, Glenn Greenwald made a reasonable point in defense of the ACLU: that “the least effective tactic [in response to an event like Charlottesville] is to try to empower the state to suppress the expression of their views.” What Greenwald left conspicuously absent, however, is that most anti-fascist “no platformers” are asking for no such thing.

The anti-fascist project is not one of asking for better statutes or a reconfiguration of rights. My allies who traveled to Charlottesville and then to Washington, DC, to confront Unite the Right, who shut down Milo Yiannopoulos in Berkeley, and who punched Richard Spencer are not asking Donald Trump, nor the Justice Department, nor any police department to take action against the white supremacy that undergirds their authority: Firstly, because such energy might as well be spent praying to gods that don’t exist. But above all, because the history of anti-fascist, anti-racist activism is not one of presuming the good faith of state power. It is not one of asking. It is a history of direct and confrontational intervention—the sort of which is itself seldom protected by a rights framework.

Today’s specious free speech debate should not lead to calls for a censorious restriction of First Amendment rights, but to an interrogation of what we can and cannot use a rights discourse to achieve. To allow white supremacists to march under the banner of “white civil rights” and “free speech” is an unconscionable authorization of racist violence. However, the answer—from a practical as well as ideological standpoint—will not come as the result of an appeal to the state to ban a far- right demonstration, rally or speech.

It’s tempting to want to push for authorities to deny permits to white nationalists, like those behind the deadly Unite the Right rally in Charlottesville, out of safety concerns. Any large gathering of white supremacists is, after all, an existential threat to the lives of black and brown people. But the bureaucracies of protest permits don’t barter with existential safety concerns. An appeal to safety will not see most racist, fascist gatherings preemptively shut down. Nor will any appeal to governmental authority.

White supremacists do have a constitutional right to publicly spew hate. In a 1969 decision, the Supreme Court ruled in favor of a Ku Klux Klan member’s right to call publicly for “revengeance” [sic] against Jews and black people. And in 1977, the court sided with a neo-Nazi group in its attempt to march through the heavily Jewish community of Skokie, Illinois. In the Trump era, a conservative court led by Chief Justice John Roberts is not about to overturn decades of (fascist-friendly) free speech absolutism. The government has upheld the speech rights of white nationalists with ardor. And yet for others, freedom of speech and association is increasingly under threat.

We know better than to call upon the government or the courts to ban white supremacist events, especially under this white supremacist administration. Anti-fascist activists have no interest in bolstering the state’s censorial oversight, and even less faith that any such censorship would ever be applied to white supremacists.

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From Being Numerous: Essays on Non-Fascist Life. Used with permission of Verso Books. Copyright © 2019 by Natasha Lennard.