7/8/2017 Know Your Rights The New Inquiry

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Know Your Rights

We limit our resistance to fascism by relying on liberal
conceptions of human rights.

By NATASHA LENNARD JUNE 28, 2017

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AFTER the DC police formed a kettle on January 20 to

capture over 200 protesters at the intersection of L and 12th
Street, I presumed they wouldnt hold them in the streets for
long. Catch and release, wed been assured by local protest
mainstays in advance of Inauguration Day. Catch and release
the police tactic of brie y detaining protesters in order to
disperse crowdswas understood to be the DC Metropolitan
Police Department modus operandi since an in rm mass arrest
in 2002 had the city paying out its nose: $8.25 million in
settlements. But the a ernoon wore on, and the police line
didnt move.

Four hours later, when the arrestees were taken into booking, I
presumed the charges would be minor, perhaps disorderly
conduct or obstructing government administration. When the
charge of felony riot was handed downrare in and of itself, let
alone for over 200 peopleI presumed it couldnt stick. Then,
in April, a superseding indictment added several more felony
charges to each defendant: inciting to riot, rioting, conspiracy to
riot, and destruction of property. Now over 200 protesters each
face up to 75 years in prison.

No one expected a prosecutorial response quite so extreme, nor

charges so unprecedented. In my over thirty years of practicing
law, Ive never seen anything like this, said veteran DC Attorney
Mark Goldstone.

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The case against the vast majority of the J20 defendants should
be paper-thin. They were swept up in a dragnet arrest; the
evidence against some arrestees (as shown in the prosecutions
discovery) is no more than: they were present throughout the
short march, they wore black clothes and masks, they chanted.
To suggest that the police had individualized probable cause to
arrest each and every defendant (even though the original
dragnet swept up journalists and legal observers, too) should be
laughable. So too should the idea that over 200 people were
involved in the breaking of one bank window, as the indictment
proposes.

Civil and human rights groups like the Partnership for Civil
Justice Fund have, unsurprisingly, responded in terms of civil
and human rights. The arrests, they point out, deploy collective
punishment and abrogate First Amendment protections. Fi y
years of case laws bears out that the presence of violence or
illegal activity within the context of First Amendment protected
activity is no grounds for the arrest of everyone present.

Strategically, an appeal to human and constitutional rights is

appropriate and necessary in the J20 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 a
rights discourse, which would only honor the rights of an
individual to assemble in a manner deemed peaceful by the
state.

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While we may want to rely on a rights defense in court, where

First Amendment activity is threatened, our defense of dissent
outside the courts should not be limited by what the state deems
defensible by metrics of human or civil rights. A rights
discourse, for example, would not defend the deliverer of that
glorious punch to neo-Nazi Richard Spencerit would, in fact,
defend Spencer.

A le ist over-reliance on a rights discourse to defend against

repression of our protest would treat the statethe Trumpian,
corporate, white supremacist stateas an interlocutor, instead of
an enemy. In 1968, John Berger highlighted a con ict inherent
to the sort of public demonstrations rights aim to defend: If
the State authority is open to democratic in uence, the
demonstration will hardly be necessary; if it is not, it is unlikely
to be in uenced by an empty show of force containing no real
threat. Its safe to say we live in a moment when it is clear and
correct to distrust the states openness to democratic in uence.

Berger did not reject the signi cance of protests, which manage
to show, in their peaceful numbers, the potential for
revolutionary action (very rare), but he saw their limitations as
empty shows of force unlikely to in uence the state. A rights
discourse which can only be used to defend this sort of protest
will thus echo its limitations: defending that which is no real
threat to the powers that be. When we call upon the government
to recognize our right to peaceful assembly, we perform the
very sort of act we are seeking to see defended: appeal to the

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democratic conscience of the state. A conscience which is very

unlikely to exist, as Berger noted.

THE J20 cases dont stand alone. In April, two U.N. human
rights investigators issued a statement in response to a wave of
bills introduced in over 19 states since Trumps 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 are considering a bill that would make
unlawful assembly a er the police have ordered a crowd to
disperse punishable with a years jail time; in North Dakota,
Republicans proposed legislation to legalize running over
protesters if they are blocking roadways (it happily 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, lawmakers referred
to violent protest to which the police and the law must
respond. The U.N. experts disagreed. There can be no such
thing in law as a violent protest, the investigators stated. There
are violent protesters who should be dealt with individually and
appropriately by law enforcement. One persons 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.

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In the unlikely event that any legislators listened or cared, a

corrective course was made clear to prima facie appease these
human rights concerns while maintaining a conspiratorial
agenda to sti e dissent: edit the bill by nding and replacing
violent protest with violent protester(s). As the DC
prosecutors deployment of felony riot charges in the J20 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 U.N. statement to highlight
the unconstitutionality of their mass arrest. But as a broader
response to the crackdowns against dissent, the U.N. 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 can only defend the very mode of protest least suited to
challenging the sort of repressive government keen to
criminalize protest: this is the con ict highlighted by Berger.
The ght becomes atomized over the fact of assembly, not the
reason for protest.

In their formulation, liberals uphold the good protester/bad

protester dichotomy that says the state can do whatever it wants
to a protester if that protester has violated some mythical social
contract with bad or violent behavior. In the reality forged
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by these conspiracy-mongering lawmakers, however, were all

bad protesters now. When were playing the states game, i.e. in
court, theres no avoiding state logic. A court doesnt care that we
dont 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. An ideology
committed to the existence and necessity of good protesters (to
be contrasted with bad protesters) presumes a status quo in
which we do not need to ght.

The collapse of strategy into ideology when it comes to rights

discourse recalls Arundhati Roys concern that weve swapped a
grand pursuit of justice for the far smaller demand of human
rights. Too o en, Roy writes in 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 justicean explicitly anti-capitalist and anti-racist
march, aesthetically uni ed 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; the individual rights discourse
deployable in court is not designed to save the former.

REACTIONARY state measures that

abrogate individual rights produce a particular outrage from
liberals, which takes the form of disbelief that the state can fall
so far from its alleged foundation as a social contract forged by

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the will of equal pledgers. As if any state were ever birthed

through peaceful agreement and democratic harmony. Needless
to say, it takes a certain position of privilege (or brainwashing, or
both) to believe such a genealogy of state power. Its almost the
liberal version of Make America Great Againan appeal to a
state formation that never was.

Friedrich Nietzsche called liberal contractualism a romantic

illusion, presenting 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 trap is that true believers in the social contract ought to,
according to their own political philosophy, withdraw their
submission to a government they believe has abrogated the
contracts terms. But faith in the ultimate legitimacy of the state,
based in liberal contractualism, is inherently un-revolutionary:
such belief relies on appeals to a governments better nature.
There is currently no consistency of what constitutes an
abrogation of the social contract, 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, which disenfranchises and cages millions? Is
everything legitimate except collusion with Russia?

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Our rights to speak out and assemble are under attack, as the J20
arrests and numerous anti-protest bills make clear. But our
defense of these rights always entails engaging on the states
terms and on the presumption of its good faith. Under Trump,
this is especially daunting. But under any administration, an
appeal to human rights presumes the states 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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