In the beginning, the students protesting on college campuses against the Israel-Hamas war argued that their activities were protected speech, immune from government sanction at public universities, and equally free from restrictions at private universities that adopted free speech commitments.
But as the tactics of protestors escalated from expressive demonstrations to blockading buildings, taking over administrative buildings and setting up encampments at the center of university grounds, their free speech argument became increasingly unpersuasive and inapplicable. Free speech doctrine could no longer shield these activities from campus discipline or a municipal police response.
Accordingly, the defense of the protests shifted from freedom of speech to the claim that protests and dissent challenging government action and decisions, whether protected speech or not, deserve special recognition and respect. These arguments are sometimes bolstered by historical references to America’s revolutionary heritage and to the civil disobedience practiced by civil rights protestors against state-mandated segregation.
This new argument stands on somewhat shaky legs. It ignores far too much of our history to be an adequate account of the nature and role of protests in the U.S. over 250 years.
It should at least be noted that protests in America have often been violent, sometimes viciously so. For example, no one could reasonably describe the response of mobs to the Stamp Act by American colonists as peaceful protests. The abolitionist John Brown was on the right side of history, but his challenge to slavery involved murder and insurrection.
More importantly, assigning special status to protests and dissent as a generic category of conduct may be a somewhat odd position for progressive protestors to assert. They, unlike their conservative counterparts, are more likely to see a positive role for government in resolving societal problems and promoting liberty and equality.
Consider these brief descriptions of non-progressive American protests and whether they and other examples strongly suggest that we need a more nuanced understanding of our history than the idea that protests and dissents deserve respect as such.
One of the earliest protests in American history was perpetrated by the Paxton Boys against the colonial government in Pennsylvania. These protestors murdered Native Americans and marched on Philadelphia for redress of their grievances — which included the demand for a government bounty on Native American scalps, as well as a cessation of government policies that allegedly favored indigenous people.
The Continental Congress, in the precursor to the American Revolution, submitted a list of grievances to Great Britain focusing on what were described as the Intolerable Acts. One of these Acts, the Quebec Act, was “intolerable” because it provided for the toleration of adherents to the Catholic faith in Canada.
What may be described as the most significant and dramatic act of protest and dissent in American history was the decision of the Southern states to secede from the Union. That choice and the Civil War that it precipitated were designed to protect the institution of slavery against what the Southern states considered to be the federal government’s ultimate and unjustified goal of emancipating millions of Black Americans from bondage.
In the New York City Draft Riots in 1863, protestors challenged the conscription of low-paid white workers, the ability of wealthy individuals to buy their way out of military service and the ineligibility of free Black men for the draft. African Americans were targeted by the mobs. Over 100 people were killed during the riots before order was restored.
In December 1944, the leadership of the Montgomery Ward Company, a major supplier of goods to the Allied war effort, refused to comply with lawful collective bargaining agreements. In response, President Franklin D. Roosevelt ordered the seizure of company plants. National Guard soldiers physically carried Sewell Avery, the chairman of the board of Montgomery Ward, out of his office.
In the 1950s and 1960s, pro-segregation protestors, attempting to prevent the racial integration of public schools and universities, blocked access to public high schools in several locations and at the University of Mississippi and rioted to impose their demands. Federal authorities, ultimately including American military forces, physically ended the blockades and rioting in Little Rock, Ark. and the University of Mississippi.
In the 1960s and 1970s, courts and occasionally legislatures attempted to carry out the promise of Brown v. Board of Education and reduce the segregation of American public schools by ordering the busing of children across school district lines. Protestors challenged such orders through demonstrations, acts of civil disobedience and rioting. Eventually, busing was rejected by courts and government as a means of achieving racial integration.
In the 1980s, under the auspices of Operation Rescue and belief in abortion as murder, anti-abortion protestors blockaded access to numerous clinics providing abortion services. Thousands of protestors were arrested. After the Freedom of Access to Clinic Entrances Act became federal law in 1994, the number of protest blockades declined, although protests at clinics continued.
It is true, of course, that protests and dissents have often furthered progressive goals and accomplished a great deal of good for our society. And protestors have often demonstrated considerable courage and fortitude in challenging government abuses of power. But protest and dissent is a tool in the hands of the people who wield it.
The use of the tool itself warrants neither special praise nor respect. What matters is why and how protests are organized and conducted. Characterizing conduct as a protest tells us little or nothing about whether it is worthy of our support or needs to be rejected and constrained.
Alan Brownstein is a professor emeritus at the University of California Davis School of Law.