Anti-war protests across US reignite debate over civil disobedience

As anti-war and Palestinian solidarity protests swept across the United States and the world earlier this year, civil disobedience has once again become a contested buzzword in American public debate.

Who has the right to protest for a cause, and how? Those questions have been the source of deep debate for a long time. They resurfaced in the US recently, amid a backlash against campus protests in solidarity with Gaza.

"I am deeply disappointed by the intolerance for freedom of speech and the right to civil disobedience on campus," declared a student speaker at Harvard's commencement ceremony in May.

Her remarks were swiftly denounced on social media. For many, breaking American laws, even non-violently, is not legitimate protest, let alone a right. Others go further, saying lawbreakers, regardless of their intentions, must suffer punishment.

In the words of one Columbia University student, "college students have the right to both free speech and civil disobedience, but students who commit acts of civil disobedience should expect, and in fact welcome, consequences like arrest and expulsion to bring attention to their cause of the day."

Such consequences are already observable: students at universities like the City University of New York face felony charges that will negatively impact their academic, professional and personal futures.

Peaceful protest has been used and abused to delegitimise social movements many times in the past century. But it was only during the 1960s that debates about the justification of nonviolent civil disobedience began to gain traction in the US.

Debating dissent

In September 1960, in the midst of the Algerian War for independence against France, French intellectuals published the Manifesto of the 121. Signed by luminaries such as Simone de Beauvoir, Alain Resnais, and Jean-Paul Sartre, the manifesto supported the anti-colonial struggle for independence in Algeria and denounced the criminalisation of antiwar dissent in France.

That same year, Nicola Chiaromonte and Ignazio Silone, editors of the Italian magazine Tempo Presente, published a Declaration of Solidarity with French intellectuals in which they argued that every citizen, in democratic systems or otherwise, has a right to civil disobedience. But when this was republished in English in The Yale Review, the perspective prompted a backlash among American conservatives.

Irving Kristol, one of the most influential conservative pundits in the 1960s, argued in the same magazine against a right to civil disobedience along the same lines as today's critics. French intellectuals, for Kristol, could disobey the law, "but they have no right to disobey them. Civil disobedience is a human privilege; there are moments when some of us may feel it to be a human duty; but it cannot be formulated as a civic (or democratic) right."

Years later, Kristol would wield the same argument against those who claimed a right and duty to civil disobedience against the Vietnam War.

The argument is compelling at first sight: How could the law authorise citizens to break itself? This seems to call into question the very idea of a political life regulated by the rule of law. How would an organised society be possible if citizens had the right to disobey some law at their discretion?

A right to resistance?

The Declaration of the Rights of Man and of the Citizen (1789), one of the pivotal documents of the French Revolution, provides for a right to resist oppression. But the Universal Declaration of Human Rights (1948), one of the main legal documents of the twentieth century, is much more reticent about the existence of such a right.

It only recognises in its Preamble that when human beings do not have their human rights respected, they resort as a matter of fact to resistance. The declaration says nothing about whether they have a right to do so.

That the declaration does not include such a right was a strategic decision, aimed at not justifying resistance against the very countries that were shaping the new international legal order: European colonial powers such as Britain and France as well as the United States, where racial segregation and lynchings were a daily reality for many citizens.

The existence of a legal right to civil disobedience is hence fragile. Certain forms of disobedience have been legalised around the world, such as the right to conscientious objection to military service. But how could the right of activists to occupy private property, for example, be made legal?

From right to practise

In the 1960s, American liberal lawyers sought to provide answers to these kinds of questions. One answer found that certain forms of protest popularly called civil disobedience were in fact not illegal, but protected by the Constitution, above all by its First Amendment.

But in this case, the legal strategy was to avoid the charge of civil disobedience and illegal protest, not necessarily to justify civil disobedience itself.

Another argument stated that unconstitutional laws (such as the Jim Crow regulations that civil rights activists were breaking in their campaigns) were not laws in the strict sense of the term, and so breaking them was not properly illegal.

Activists would be rather resorting to direct action on the streets to urge the Supreme Court to reconsider the constitutionality of the laws in question. Even in cases where there was, in fact, disobedience to the law, the American legal system allowed, and allows, prosecutors to drop charges against activists as a way of recognising that their actions were based on key moral and democratic principles.

But insisting on whether civil disobedience is a legal right leads us to forget something fundamental about its practice. For decades, if not centuries, American citizens have considered themselves to have not only a duty to fight injustice and inequality, but also a democratic right to do so.

Consider the Boston Tea Party in 1773, in which the Sons of Liberty dumped 92,000 pounds (roughly 46 tons) of tea into Boston Harbor, an act of rebellion against the British that paved the way for the American Revolutionary War and eventually, American independence.

This foundational precedent was raised during the Civil Rights movement. In his famous "Letter from Birmingham City Jail" for example, Martin Luther King Jr argues that "In our own nation, the Boston Tea Party represented a massive act of civil disobedience." For King, civil rights activists belonged to the same tradition of resistance.

Thus, even if it can be said that there is no legal right to civil disobedience, the existence of such a right is part of the American political imagination thanks to these struggles.

Decades after the fact, universities like Columbia and Harvard have commemorated the student movements that developed on their campuses during the 1960s, hailing these activists as guardians of American democracy.

Civil disobedience today

For many Americans, the idea that it is necessary to sacrifice oneself to exercise civil disobedience in a democratic system, like the American one, seems to be contradictory.

Rather, it seems to indicate to them that the United States is not a democracy. Student protesters today see themselves as part of a long tradition that has resorted to civil disobedience to fight injustice at home and unjust wars abroad. And from their point of view, they have a moral right to do what they are doing.

Conservatives are weaponising this more radical stance to delegitimise pro-Palestinian protests and to condemn what they consider to be the Democratic Party's weak stance on law enforcement, even though many conservatives consider the January 6 attack on the US Capitol building to be legitimate resistance to fraudulent elections.

Despite the law-and-order rhetoric with which they have been confronted, it seems that pro-Palestinian civil disobedience movements in American universities and beyond have been able to successfully galvanise public opinion towards a ceasefire in Gaza.

At a time when the Supreme Court has ruled that American presidents can disobey the law in official acts, it remains to be seen how Donald Trump and his supporters will make the ruling compatible with their law-and-order agenda.

What is certain is that the ruling now enables activists who practise civil disobedience to prove that American law permits gestures of disobedience – and that it should therefore protect activists who break it to fight against inequality and for justice.