Photo credit: Barry Haynes
This analysis summarizes and reflects on the following research: Malherbe, N., Day, S., Cornell, J., Seedat, M., & Suffla, S. (2020). Exploring police-protester interactions. Peace and Conflict, 26(3), 236–246. https://doi.org/10.1037/pac0000441
In the context of South Africa:
- Although the right to protest is protected and institutionalized, this very institutionalization can serve to co-opt protests, neutering them of their disruptive potency.
- Due to the inherent power imbalances between police and protesters, “dialogue policing” and other seemingly benign “soft-policing” tactics during protests ultimately serve the interests of the state.
- In spite of these inherent power imbalances, protesters can engage in “soft resistance” to reclaim agency in response to “soft-policing” tactics.
Often research on protest dynamics focuses on the instances of overt violence between police and protesters within protests, which are more the outlier than the norm globally. This research instead examines the interactions between police and protesters in protest situations where neither side uses overt violence. Specifically, the authors ask, what are the “subtle and more coercive exercises of state power” in managing dissent? Based on their analysis of video footage from a 2013 South African labor protest, the authors conclude that protester-police relations are constrained by legislative and bureaucratic procedures that result in outcomes preferred by the state.
In post-apartheid South Africa, protests are protected as a constitutional right and through various legislative acts, including the Regulation of Gatherings Act (RGA) 205. On its surface, the RGA purports to “institutionalize the rights of protesters,” but in actuality it is an attempt to weaken protests through soft-line policing tactics such as dialogue policing, which “coerce[s] protesters under the guise of consent.” Dialogue policing, as outlined in the RGA, establishes protocols for organizers, police, and local municipalities to maintain dialogue and prevent protest-related violence. In practice, the Act requires a permit application for events, and, in some cases, a protest marshal is assigned to act as a liaison between protesters and police during the event. Protest marshals are neither police nor protesters—they are outsiders who are trained to prevent violence and reduce disorder at protests by establishing dialogue and relationships built on trust.
The authors examined edited and unedited footage of the 2013 South African Municipal Workers Association (SAMWA) march in Cape Town to get a better sense of the “more indirect and subtle forms of control, such as regulation, negotiation and self-monitoring,” exercised by the state (namely, the protest marshals) towards protesters. It is clear from the footage that the protesters were not satisfied with the approved march route. In accordance with the RGA, city officials, the South African Police Service (SAPS), and organizers had to negotiate and agree on an approved route. The protest marshals repeatedly reminded protesters of the “agreement [on the approved route] we had with the police” and invoked camaraderie by referring to protesters as “comrades” in their instructions to remain “disciplined.” Protest marshals stressed the importance of self-monitoring to remain on the approved route throughout the march. The protesters, however, chose to go on their preferred route through the populated areas of the city, rather than remain on the side streets as the city officials intended. SAPS officers and protest marshals attempted to physically, though not forcefully, redirect protesters back to the approved route but to no avail. There were a few instances of looting in response to which the SAPS fired tear gas and, in conjunction with the protest marshals, stood between protesters and street vendors. Aside from this one incident of escalation, it was an otherwise peaceful march. By rejecting calls to self-monitor and comply with a route that was clearly at odds with the goals of the march, the protesters engaged in “soft resistance” in response to the “soft-policing” procedures implemented via the RGA.
Although protests are a protected form of civic engagement in South Africa, they are in contention with law enforcement and the state, as protests are meant to “interrupt the status quo as a means of drawing attention to and seeking to address injustices… supported by the status quo.” Amidst this contentious relationship, the authors point out an apparent power imbalance between the state/police and protesters, asserting that “police are always, overwhelmingly, in a position of greater power.” This power imbalance is exacerbated by the RGA, which, as designed by the state itself, reconfigures (through negotiation, self-monitoring, and regulation) protests as a “tamed performance that pays [lip] service to the presence of democracy” rather than a “tool to deepen the democratic process.” Protesters were able to resist these constraints brought forth by the RGA by proceeding with their preferred route and thus reclaim their agency and legitimacy as protesters.
As a remedy for policies that effectively neuter a legitimate form of democratic expression, the RGA must be reimagined “as a conduit to hold rather than resolve the contradictions inherent to protected protests.” Key to this process is the acknowledgement of the intrinsic power imbalance between police and protesters and the way it can compromise the impartiality of protest marshals in favor of state-centric outcomes. The RGA should be refashioned as legislation that allows—but does not legalize and thereby dilute—“socially disruptive” protests. Protest—and the disruption it causes—is a constitutional right, therefore legislation should not curtail that disruption by making it socially palatable, and protest marshals should ensure that protests are not diluted or co-opted by the state.
This research calls attention to the power imbalance that exists between the state/law enforcement and protesters, which plays out in state attempts to manage dissent. In the U.S., there has been a growing trend of police and prosecutors criminalizing protest since 2016. As a result of copious video evidence of violent police repression during the 2020 protests, Americans are largely sympathetic to Black Lives Matter protesters. Yet, the more insidious criminalization of protest is less widely known. As in South Africa, protests are a constitutional right in the U.S., and managing dissent by way of criminalizing protesters merely for expressing their rights is unconstitutional, even if state forces are those responsible.
Since November 2016, state legislatures have proposed 135 bills in 40 states that would restrict the ability to protest, with 27 of them being enacted into law across 14 states. Legislation has gone so far as to criminalize face coverings because sometimes masks are worn at protests. One activist in North Dakota remarked, “we have lost the narrative that dissent and assembly are okay… we’re young anarchists in their [public officials’] eyes.” In addition to new laws criminalizing protest, police officers routinely arrest protesters for nonviolent charges such as loitering, interfering with a police officer, or blocking a roadway. In some cases, protesters have received felony charges, including terrorism, for relatively harmless acts such as breaking windows. By June 2020 (a few weeks after George Floyd’s killing), police around the country had arrested more than 10,000 people in connection with overwhelmingly nonviolent Black Lives Matter protests, many of whom were charged with nonviolent, public disorder crimes.
After the unprecedented display of resolve during the 2016 Standing Rock protests, fossil fuel companies motivated by profit began working with policymakers to criminalize protest. Through campaign contributions, oil and gas industries successfully lobbied state legislators to enact laws limiting these protests. Essentially, corporate fossil fuel interests drove many of the anti-protest laws enacted in the last four years—laws that of course apply to all protesters within the relevant jurisdictions. Coincidentally, over the last four years, numerous nationwide marches and protest movements have erupted, such as the Women’s March, the People’s Climate March, and the March for Our Lives, culminating in the 2020 racial justice protests. In other words, activists persist in their resistance to injustice and violence, despite now being subject to growing criminalization and laws intended to stifle them.
As in South Africa, state officials and police departments in the U.S. are infringing on the constitutional right to protest in an effort to manage dissent. In addition to being sympathetic to protesters, Americans must acknowledge state repression occurring at the state and local level and push back against the infringement of this right. Citizens can lobby local and state politicians to enforce the rights of protesters and hold law enforcement accountable, while also advocating for legislation that further solidifies protesters’ rights, such as a protest bill of rights, and police accountability. Furthermore, electing prosecutors committed to protecting First Amendment rights can protect protesters from trumped up criminal and federal charges. Everyone should be concerned about violations of any First Amendment rights, as they are the bedrock of the U.S. Constitution. [KH]
Colchete, G., & Sen, B. (2020, October). Muzzling dissent: How corporate influence over politics has fueled anti-protest laws. Institute for Policy Studies. Retrieved on October 28, 2020, from https://ips-dc.org/report-muzzling-dissent/
Gell, A. (2020, October 26). Our right to protest in under chilling assault. GEN by Medium. Retrieved on October 27, 2020, from https://gen.medium.com/our-right-to-protest-is-under-chilling-assault-7b9f138af2a9
International Center for Not-For-Profit Law. (N.d.). US protest law tracker. Retrieved on October 27, 2020, from https://www.icnl.org/usprotestlawtracker/?location=&status=enacted&issue=&date=&type=legislative
Lacy, A. (2020, August 27). Protesters in multiple states are facing felony charges, including terrorism. The Intercept. Retrieved on October 21, 2020, from https://theintercept.com/2020/08/27/black-lives-matter-protesters-terrorism-felony-charges/
Livni, E. (2020, April 15). Coronavirus pits anti-mask laws against public health. Quartz. Retrieved on October 27, 2020, from https://qz.com/1837586/coronavirus-pits-anti-mask-laws-against-public-health/
PEN America. (2020). Arresting dissent: legislative restrictions on the right to protest. Retrieved on October 28, 2020, from https://pen.org/wp-content/uploads/2020/05/Arresting-Dissent-FINAL.pdf
Rowland, L., & Eidelman, V. (2017, February 17). Where protests flourish, anti-protest bills follow. ACLU. Retrieved on October 27, 2020, from https://www.aclu.org/blog/free-speech/rights-protesters/where-protests-flourish-anti-protest-bills-follow?redirect=blog/speak-freely/where-protests-flourish-anti-protest-bills-follow
Sainato, M. (2020, June 8). ‘They set us up’: US police arrested over 10,000 protesters, many non-violent. The Guardian. Retrieved on October 22, 2020, from https://www.theguardian.com/us-news/2020/jun/08/george-floyd-killing-police-arrest-non-violent-protesters
Key words: protest, policing, nonviolent/civil resistance, South Africa