Protesting: Civil Action Or Criminal Offense?

Protesting is a way for people to express their dissatisfaction with a particular issue and seek change. While some protests are carried out within the confines of the law, others involve breaking the law, such as through civil disobedience. The question of whether it is justifiable to break the law during a protest is a complex one, and it depends on various factors, including the nature of the issue being protested, the extent of law-breaking, and public opinion. Some people argue that breaking the law during a protest is never justifiable, while others believe that it can be morally or ethically defensible when protesting unjust laws.

Civil disobedience and direct action

Direct action can take various forms, ranging from nonviolent to violent methods. Nonviolent direct action, championed by figures like Martin Luther King Jr. and Mahatma Gandhi, focuses on tactics such as boycotts, sit-ins, and peaceful protests. On the other hand, violent direct action may involve political violence, assault, arson, and sabotage. While some argue that violence can be an effective tool for change, others believe it undermines the cause and can lead to negative perceptions of the movement.

In the US, the First Amendment protects the right to assemble and express views through protest. However, it's important to note that there are certain restrictions on this right. For instance, while protesting on streets, sidewalks, and parks is generally allowed, blocking access to buildings or interfering with their intended use is not permitted. Additionally, counterprotesters also have free speech rights, and the police must treat all protesters equally.

When participating in direct action, it's crucial to be aware of your rights and how to protect yourself. This includes knowing how to interact with law enforcement, documenting any potential rights violations, and understanding the potential legal consequences of your actions. It's also important to respect the rights of others and avoid engaging in unlawful activities that could jeopardize the impact of your cause.

Direct action has been a driving force behind significant social movements, including the American Indian Movement, the Civil Rights Movement, and the feminist movement. By utilizing nonviolent tactics, these movements have successfully challenged discriminatory laws and promoted equality. Direct action empowers individuals to stand up for their rights and create positive social change.

Moral justification for law-breaking protests

Protests are a fundamental part of democracy, protected by the First Amendment in the US Constitution. However, the right to protest does not equate to a right to break the law. Protestors who break the law can and often do face legal consequences, such as arrest and charge.

Despite this, there are moral justifications for law-breaking protests. The liberal democratic process is based on the recognition that people will disagree with each other and that these disagreements should be resolved through discussion and reason, not violence. However, this process is not perfect, and even in countries that claim to uphold liberal democratic principles, wrongs occur. When the state oversteps the mark and acts against the interests of its citizens, some argue that violent protest can be a rational and morally grounded response.

The state requires the obedience of its citizens to function effectively. If the state's actions, philosophies, and laws contradict the moral foundations to which it lays claim, it can lose its legitimacy in the eyes of its citizens, and violent protest can become a justified response. This is particularly true when illegitimate political systems and state actors refuse to relinquish their power through peaceful means.

However, it is important to note that discourse and discussion should always be the first course of action when addressing disagreements with the state. Violence should not be the first tool reached for when one disagrees with the society in which they live.

Public opinion and protest

The public must evaluate whether the cause is just and whether the disruption is warranted. For example, the sit-ins during the civil rights movement were illegal, but public opinion eventually shifted, and people realised that the "crime" did not justify the punishment, leading to a change in perspectives. This is a key mechanism of protest: creating friction between a just cause and unjust laws.

Some argue that there may be moral or ethical justifications for breaking the law during a protest, particularly if the law being protested is considered unjust. Protests are often specifically designed to break unjust laws, and the public's response to state punishment of protestors is often driven by a moral evaluation of the state's actions, rather than their legality.

However, others argue that nobody has the right to break the law, and that any protest which does so has automatically invalidated its cause, regardless of public opinion. This view holds that protests should remain legal and that there are always other means to voice dissent without breaking the law.

Overall, public opinion is a critical component of protest movements, and the public's perception of the legality and morality of a protest can significantly impact its outcome.

Regulation of protesting conduct

The right to protest is protected by the US Constitution and the First Amendment. However, this right is not absolute, and there are laws in place to regulate protesting conduct.

Permits

In the US, you don't need a permit to assemble in "traditional public forums" such as streets, sidewalks, and parks. However, certain types of events may require permits, such as marches or parades that block traffic, rallies that require the use of sound amplification equipment, or large rallies in most parks or plazas. When a permit is required, it is important to submit an application well in advance of the planned event.

Restrictions

While the First Amendment protects the right to assemble and express views, police and government officials can place certain restrictions on the exercise of speech rights. For example, restrictions may be placed on the route of a march or the use of sound equipment if deemed necessary for traffic control, public safety, or effective communication with the intended audience. Additionally, counterprotesters have free speech rights, and police must treat protesters and counterprotesters equally, keeping antagonistic groups separated but within sight and sound of each other.

Unlawful assembly

Participating in an unlawful assembly is a crime in every state. A peaceful public event can become an unlawful assembly if participants develop the shared intent to commit an illegal act or do so in a violent and unlawful manner that causes others to fear violence or property damage. In such cases, law enforcement officials may declare an unlawful assembly and order the protesters to disperse.

Anti-mask laws

In the US, some states have anti-mask laws that prohibit people from wearing masks or other disguises to conceal their identity in public. However, these laws generally do not apply during public health emergencies, such as the COVID-19 pandemic, when mask-wearing is recommended or required.

Firearms regulations

Most states have laws that restrict local jurisdictions from regulating firearms beyond what is allowed by state law. This can impact the ability of localities to include restrictions on carrying firearms as a condition of a public event permit.

Hate crimes and domestic terrorism

Federal and state laws impose stricter penalties for hate crimes and acts of domestic terrorism compared to other violent crimes. These types of crimes are often motivated by bias and seek to intimidate or coerce entire communities.

Private paramilitary activity

Laws in every state prohibit private individuals from engaging in military or law enforcement activity outside of governmental authority. This includes organizing as private military units, carrying out paramilitary activity, or falsely assuming the duties of law enforcement or the military.

Public nuisance laws

Officials in every state have the power to address public nuisances that interfere with public health, safety, peace, and convenience. While disruptive demonstrations are generally not prohibited as a public nuisance, jurisdictions may seek an injunction against conduct that presents a significant hazard to public health, safety, or access to public facilities.

Staying safe while protesting

• Avoid direct contact with police, military, or counterprotesters.
• Maintain physical distancing and avoid close physical contact with others.
• Do not run unless absolutely necessary. Move slowly as a group.
• Protect your cell phone privacy by locking it, disabling location services, and turning off notifications.
• Protect your identity and the identity of others by covering or obscuring faces in pictures posted on social media.
• Be aware of undercover police officers in the crowd. Be wary of individuals who forcefully advocate for violence, especially when the crowd seems peaceful.
• If protesting after curfew, there is an increased risk of arrest or bodily injury. Stay with the group and follow instructions from event organizers.

Protest as a threat to elite power

Protests are a fundamental way for people to express their views and demand change. They have been the driving force behind some of the most powerful social movements in history, from the Salt March against British colonial rule in India in 1930 to the Black Lives Matter protests in recent years. However, protests also pose a threat to elite power, and authorities often try to suppress them.

The right to protest is protected by the First Amendment in the US Constitution, which guarantees freedom of assembly and expression. Despite these protections, governments and powerful interests constantly find new ways to suppress protests and silence critical voices. This includes the militarization of police forces, the misuse of force by police at protests, and the shrinking of civic space. These tactics are used to intimidate protesters and make it more difficult for them to be heard.

In some cases, intervention from state authorities can turn otherwise peaceful protests into dangerous and violent situations. The use of military forces, armoured vehicles, surveillance drones, and other equipment designed to inflict harm on protesters is disproportionate and unjustified. Authorities should instead focus on making protests safer by communicating with organizers and providing necessary services like traffic management and access to first aid.

Protests can also be a powerful tool for challenging regimes and demanding political change. Mass protests can lead to security-elite defection, which is crucial for regime change. This can take the form of active defection, such as a coup d'état, or passive defection, where security elites simply abstain from supporting the regime.

To protect the right to protest, organizations like Amnesty International are working to expose violations and support movements worldwide. It is crucial that everyone can protest safely and without discrimination, regardless of their age, race, gender, or other factors. By working together and ensuring that everyone can participate equally, we can create a more just and equal world.

Frequently asked questions