Prohibiting the Peaceful: How Nonviolent Protests Get Criminalized Here and Around the World

By DAVID SCHMIDT

“Those poor people, getting shot at and arrested just for protesting. It’s so terrible how other countries silence free speech.”

For many of us who grew up in the US, this was how we watched the nightly news. We would recoil as we watched protesters in other countries beaten, dispersed, detained, and shot. We saw that lone man staring down a tank in Tiananmen Square, and we applauded his bravery. Free speech was a right we enjoyed here, while the rest of the world was not so lucky.

Oh, sure, we had had our problems in the past. We read the history books, heard of strike-breakers in the distant Industrial Revolution. We’d seen photographs of the fire hoses and the dogs during the Civil Rights marches. Sometimes, we imagined what a dystopian future might hold for our nation, but that was the stuff of science fiction stories. In the here and now, we insisted, Americans were free to speak our mind.

What we never imagined was how certain countries curtail free speech. Very rarely does any government announce, “Protesting is illegal here,” or “You will be locked up if you oppose the government.” There are much more insidious ways to criminalize protest—clever techniques for keeping free speech laws on the books, even while protesters are locked up. Protesting is both legal and illegal, a Schroedinger’s Cat of the judicial system. You can express yourself freely, and you can also fear for your life if you do so. It’s a marvel of Orwellian doublespeak.

What we certainly didn’t suspect was that our own government had been pulling the same tricks for years. And they still are.

On May 31, after the murder of George Floyd by Minneapolis police, I attended a large demonstration in downtown San Diego. I invited my friend to come along. It was her first protest.

The march remained peaceful as 1,000 citizens headed westward through the historic Gaslamp District. Once we moved north to the Hall of Justice on Broadway, though, we met with a massive display of force: militarized police in riot gear, armored vehicles, National Guard troops. Snipers on the roof of the nearby Hotel Sofia pointed their weapons at us.

“Stay alert,” I told my friend. “This could get ugly. This feels like a lot of protests I’ve seen in Haiti, in Latin America, right before the demonstrators get attacked.”

“That sort of thing doesn’t happen here, though,” she replied. “This is San Diego.”

I wanted to share her optimism. Things felt calm at first. Protesters chanted slogans and held their hands up, with cries of “Hands up, don’t shoot!” One police officer took a knee in solidarity, offering his hand up to a nearby protester. The crowd applauded.

Suddenly and without warning, a loud bang went off. Someone screamed and the crowd went into a panic. I pulled my friend away from the crowd and we started running east down Broadway. Behind us, I heard the familiar sound of small arms fire, rubber bullets shot into the crowd of screaming women and men, youth and children. Clouds of tear gas rose over Broadway. A few blocks away, we passed a massive fleet of police vehicles heading toward the Hall of Justice, blocking in the crowd from the east.

“That’s not going to make them disperse,” my friend said.

“It’s not intended to,” I replied. “It’s to corral them into a small area.”

I would later learn that the SDPD had issued an announcement on their official Twitter account: Unlawful assembly order being given in the area of Broadway. We are asking everyone to disperse immediately due to the escalation of violence by the protestors. None of my friends at the protest heard any warning, no orders to disperse. The attack came out of nowhere. Of the protesters trapped inside the phalanx of police, over 100 were arrested that afternoon.

It’s a very common technique, and just one of the many ways that peaceful protest can be easily transformed into an illegal activity.

Despite what movies like “The Interview” will tell you about “totalitarian states,” very few countries actually outlaw all protests. There are, however, many strategies that are used around the world—including here—to indirectly criminalize them. Here are some of the most common:

1. FORCE A CONFRONTATION. The technique my friend and I witnessed in San Diego is known as “kettling.” It is a military strategy that has the aim, not to disperse an assembly, but to trap its participants, ensuring mass detention and/or injury. When protesters are forced into a crowded area, with no viable option for escape, they may try to push their way out. They can then be charged with assault on a police officer.

2. REQUIRE PERMISSION FOR THE PROTEST. “You know how countries like Iran are,” many people say. “They aren’t allowed to protest over there.” Nothing could be further from the truth—plenty of public demonstrations, marches, and assemblies take place in Iran, in North Korea, in Cuba, and so forth. There’s just one caveat: a gathering must have the government’s permission first.

Even the most totalitarian states of the world claim to support peaceful protest. “We’re only against illegal protests,” they claim. It echoes the sentiment of the old hair-splitting claim, “I’m not xenophobic; I only oppose ‘illegal immigration.’”

In the same vein, many laws in the United States allow law enforcement to declare a protest illegal halfway through it. The protesters don’t need to even do anything illegal or violent—if law enforcement feels they might do so, they can arbitrarily declare it an “unlawful assembly.” Of course, once this announcement has been made, any peaceful demonstration becomes automatically criminalized.

3. GUILT BY ASSOCIATION. Rather than outlawing the act of protest itself, many governments work to associate it with some illicit group: armed subversives, a terrorist organization, a criminal element. Protesters are then accused of collaborating with foreign agitators, seeking to overthrow the government, conspiring to commit violence, and so on. It doesn’t matter if their protest took place peacefully.

President Trump’s recent efforts to declare Antifa a “terrorist organization” go in hand with this. Another example would be efforts to broadly link all protesters with looting and rioting.

4. FIND OUT WHO IS A DISSIDENT, THEN FIND SOME OTHER REASON TO ARREST THEM. Many Cuban dissidents are fond of saying that nobody is arrested for being a dissident in Cuba. However, once a person participates in controversial political activities, the authorities look carefully for any excuse to prosecute them: a tax infraction, a parking violation, unpaid debts.

While this approach has been applied in the US for decades — famously, during the COINTELPRO program in the 1960s and 1970s — it has taken on a futuristic “Black Mirror” tone in recent years. Facial recognition technology has been used by law enforcement to present criminal charges associated with a protest, even after it has ended. In some cases, the technology itself has led to false positives, incorrectly identifying people of color at a disproportionate rate. (‘The Computer Got It Wrong’: How Facial Recognition Led To False Arrest Of Black Man, NPR, June 24, 2020).

The Huffington Post published an article that describes, in disturbing detail, recent legislation that cracks down on peaceful protest. (“States Have Put 54 New Restrictions On Peaceful Protests Since Ferguson,” Alexander C. Kaufman, Huffington Post, June 5, 2020.) Numerous laws have instituted harsh felony sentences for protesters, expanding the definition of “riot” and “disorderly conduct” and curtailing free speech in public places. In the wake of the Standing Rock pipeline protests in North Dakota, 12 new laws create special penalties for protesting fossil fuel sites.

The indirect criminalization of peaceful protest has already been a reality for centuries, though. In these trying times, the ability to effect change and influence policy makers is limited enough already. The right to protest is like a muscle: it needs exercise to stay alive.

If we don’t use it, it will atrophy, languish, and eventually die.

David J. Schmidt is an author, podcaster, multilingual translator, and homebrewer who splits his time between Mexico City and San Diego, California. He is a proponent of fair and alternative forms of trade. Schmidt has published books, essays, short stories and articles in English and Spanish, and is the co-host of the podcast “To Russia with Love.” He speaks 12 languages and received his B.A. in psychology from Point Loma Nazarene University. See holyghoststories.com. Twitter: @SchmidtTales.

From The Progressive Populist, August 1, 2020

Populist.com