There is panic in the air that the government is taking away the “right to protest” or making “all protest illegal.” It’s a good moment to ask, what is the right to protest, and why are activists so concerned with keeping their resistance lawful?

What is the right to protest?

There is no such thing as “the right to protest” as such. This is partly because “protest” does not refer to any one kind of activity; it might include marches and static demonstrations, occupations and blockades, street theatre and leafleting, direct action and symbolic gestures. Sometimes we have the right to do some of these things, sometimes we don’t.

This means that our legal permission to protest is constituted through a collection of different rights. For example, Article 10 of the European Convention on Human Rights protects freedom of expression – the right to share your views publicly – and Article 11 protects freedom of assembly – the right to gather together.

But there are also plenty of activities which activists do which are not protected by these rights. Graffiti and other forms of vandalism are not typically protected by Article 10, and Article 11 does not give people carte blanche to indefinitely block roads to make a political point.

Activists and protesters do not always remain within their rights. People stand where they’re not supposed to, enter private land, stay out past the agreed end time, refuse to be dispersed by police. When we talk about protecting protest rights, we are talking only about protests which remain within the law.

Rights and the State

A right is something the State guarantees your permission to do. (Note: it only guarantees your permission, not your ability – we all have the right to own a lamborghini, even though most of us don’t have the means; we all have the right to run a marathon even if we are not physically able).

There is a flipside to this permission: when the State grants a right, it correspondingly limits your freedom to act beyond that right. We often seek to protect rights in order to limit the power the State has over us, but the existence of rights also depends on State power. Rights can only exist if the State has ultimate control over what people are and are not permitted to do.

When the State guarantees the right to freedom of public assembly it does so on the understanding that it is the ultimate arbiter of when, where, and how people are permitted to assemble. When the State guarantees the right to freedom of speech it is declaring that it decides what speech is permissible and what isn’t. If the State did not maintain the ability to limit our freedoms it would be meaningless for it to grant us rights.

Those of us who wish to avoid repression by the State would do well to stop turning to the State to protect us from itself.

The power to protest

This is not to say that rights are meaningless or that they are not worth defending. Far from it. But their importance is best understood by thinking about what they allow us to do, not as ends in themselves. It’s helpful to shift our thinking away from protecting our right to protest and towards protecting our power to protest. Instead of prioritising the lawfulness of protest, prioritise its effectiveness.

Specific legal protections do indeed make protesting easier and help people avoid punitive responses; that’s why movements have learned to organise legal observers and bust cards and legal briefings. But rights alone are not what makes protest possible. Also necessary are solid organisation, practical knowledge, material resources, networks of solidarity and care, rigorous principles, critical thought, etc. With these things present, the state withdrawing our permission is not enough to stop us. Without these things, the right to protest is worth very little.

Some days people don’t stand where the police tell them to, don’t leave when instructed, don’t disperse in an orderly fashion. Some days crowds become uncontainable.

On those days protesters are not acting in accordance with their rights, they’re acting in accordance with their power. It’s a sight to behold.

~ Mediocre Dave

This article first appeared in the Summer-Autumn edition of Freedom journal, available at our online shop for the cost of postage.

Pic: Arrests at an Insulate Britain protest, by Guy Smallman