JURIST Guest Columnist Benjamin G. Davis, Professor of Law at the University of Toledo, Ohio, discusses the current protest marches happening across the United States...
1. There’s something happening here; What it is ain’t exactly clear
On Sunday, May 31, 2020, I posted on my Facebook that we should expect the repression to come soon. And almost like predictable clockwork, the repression started the next day. We can note the teargassing and flash grenading of peaceful demonstrators and international press at Lafayette Park across from the White House for the Presidential photo-op in front of the Episcopal Church. And we can note the President telling the nation’s governors they need to dominate these demonstrators. And there is the Secretary of Defense talking about the need to dominate the battlespace in reference to the demonstrations and protests done by Americans consistent with their Constitutional rights. Many of us saw the images of the military in full battle fatigues lined up in front of the Lincoln Memorial in a vague image of a police state like back with the generals in Greece.
But, for what it is worth, I wanted to make this statement about all of this.
While the images of the military in front of the Lincoln Memorial standing right where Martin Luther King, Jr. gave the “I Have a Dream” speech in 1963 are particularly jarring, it is important to note that they were in Washington, D.C. only. Why? Because deploying them in states would generally require the invitation of the Governor of the state. Now there are some exceptions like when federal troops went into the South to help with quelling demonstrations and integration of schools, but generally, the approach is by invitation of the Governor. And, from what I understand, none of the Governors around DC showed any inclination to provide National Guard troops to assist this effort at intimidation. Hooray!
Given that history, and the hesitancy of then-President George Bush to deploy federal troops to Louisiana even in the devastation of Katrina without an invitation from the Louisiana Governor, having federal troops go into a state would be burdened with very powerful symbolism. I would love to see a Southern Governor requesting active-duty federal troops to come to their state in the old South. It would be fascinating to see the Southern heritage types explain why they are inviting federal troops into the South. I can imagine General Robert E Lee would turn over in his grave.
2. There’s a man with a gun over there; Telling me I got to beware
This totally foreseeable repression was not surprising. America has been and tends to be particularly a one-trick pony of repression in response to this kind of spontaneous people going to the streets. There are also in our violent culture significant numbers of people who revel in beating the crap out of people – I call them the Fight Club trippers – that are just itching for it.
In this setting across race lines, these persons are the Amy Cooper types who want and think they paid for the repression and so expect that it be done in their name. Their relationship to the police force is one not of fear of them, but of having hired hands that one can rely on to have them repress people.
Now that the Secretary of Defense is talking about dominating the battlespace referring to the United States, let me break some things down for you.
3. I think it’s time we stop, children, what’s that sound; Everybody look what’s going down
As I have mentioned before – referring to Francesco Alberoni, a brilliant Italian sociologist who wrote Movements and Institutions (English version came out in 1984) – we are going through what he termed depressive overload due to the contradiction between what we think of as positives internally and what we are experiencing externally which are the deep negatives of the horrific George Floyd murder, the 40 million unemployed suddenly in two months, and the COVID-19 pandemic and the inept governmental response at all levels. All that is a great deal for any one person to deal with as we move between anxiety, anger, and depression about this life: staying at home, wearing masks, and washing our hands so frequently.
Clearly protest has developed from this terrible external situation – a nascent state where people struggle to figure out how to do something about this depressive condition and say enough is enough. So they demonstrate. And in coming together, exchanging on social media, and talking with each other they seek affinity with others about this terrible state of affairs. And the numbers of people experiencing this are not the huge numbers in the street alone, but the others sitting at home who have cried or been terribly distressed about the current state of their life, the cold heartlessness of the police officer who asphyxiated George Floyd, and the indifference of the other three police officers who could have stopped it at any time.
These efforts at seeking out others and getting a clear idea as to what to do and then move forward collectively can turn into a movement. In fact, that may be happening right now.
4. What a field-day for the heat; A thousand people in the street;
So we have the protests and demonstrations that happen that want to become a movement. However, institutions like the state and other institutions of society confront this nascent effort as a movement they do not control it. And one thing people at institutions need and want is control.
So these institutions try to quash the nascent movement in four ways as detailed by Alberoni.
- Cooptation (those are the police being nice with protesters and supportive of them, but also the criticism of the looters and property destroyers and ascribing to them the terrorist label so as to reframe the movement as something alien done by outside agitators and on and on).
- Repression (those are the police and military beating up and arresting protesters, going after reporters, the military show of force (flash grenades and tear gas), the curfews and the arrest of curfew violators and on and on).
- Make you think it is a fantasy (this is where the local, state, and federal leaders with a show of force try to make you understand that there is no hope for what you are doing; that you are not doing things the right way like they did in the civil rights movement, that you are going to have people demonstrating in your neighborhoods which is crazy, and that you are just partying and not serious about the underlying causes that have awakened your willingness to demonstrate, or that because you are this or not that, you have no right to be concerned).
- And killing people. (We have not seen much of that yet, but I am expecting with the deployment of the military who are very good at killing people and breaking things, that a Kent State or Jackson State type event will happen one or more times as the movement resists being put down.)
As you can see, some combination of these things are happening right now.
So let us break it down.
People who talk about the violence of the protests, comparing it to the civil rights movement’s non-violence in the 1950s and 1960s overlook one important thing about the civil rights movement. Those marchers in the civil rights movement had been put through heavy training including practice in different situations to figure out what was the appropriate way to respond non-violently to the repression that was inevitable.
So when the violence was asserted on them, those images went around the world like they are today, and America was caught with its pants down. But those images also provided useful propaganda to be exploited by the Soviets in the battle over dominance of the states of the Third World. One only has to re-read Brown v. Board of Education to see how much the world view of the United States was weighing on the United States. So even with the massive resistance violence enabled by state and local police in the South, that broader reality created complications for the governing class and so they switched from repression to cooptation as a solution.
Cooptation came in the form of decisions to integrate schools by the courts, but also the Civil Rights Act of 1964, the Voting Rights Acts of 1965, the Civil Rights Act of 1968, and the Great Society.
In contrast to that period when there were riots in urban centers in 1965 (Watts sparked by police brutality), 67 (Newark, Detroit), and 68 (after the murder of Martin Luther King, Jr., everywhere) when there was a very good economy, we are now in a situation where there is a very bad economy, a dangerous COVID-19 pandemic, and police murder also.
The current demonstrations and protests are by people spontaneously getting together like those in the 1960’s riots but with no non-violent training like the people in the civil rights movement. So it is not surprising that these untrained but sympathetic persons today do some stupid things that amount to violence. They are making it up as they go along, trying to do their version of non-violence but also being provoked into doing stupid things.
How many times have we seen young people do violent things spontaneously like taking down goalposts, celebrating after the Super Bowl, or out carousing? Those are the same untrained people you see on your television. And there are those who certainly want to break stuff and steal stuff in the mix here who do not really care much about George Floyd as demonstrated by their actions. And, of course, there are those who want to delegitimize the movement such as white supremacist groups who are itching to create a race war who can blend into these spontaneous protesters and then take opportunities to wreak havoc.
Because there are not clear chains of command from what I can see and disciplined persons running these demonstrations these protests are susceptible to being co-opted by different groups with their agendas. These different groups are agents provocateurs with their own agendas. From what I have heard, some of them are very well organized and have frustrated the peaceful protesters with their destruction of property. Without sufficient training and organization, the peaceful protesters’ ability to identify these elements and turn them over to the police is difficult as there is not a clear chain of command or authority in this diffuse group of persons revolting locally against oppression.
And, as part of the effort of co-opting, the burning businesses, etc at night are used to characterize the entire effort in a concerted effort to delegitimize the response to the oppressive realities these people are protesting, without changing one iota about the oppressive reality.
Well, maybe one change, which is arresting the officer and another change is arresting the other three officers for aiding and abetting the murder of George Floyd. Those efforts at the state level are not backed up at the federal level where civil rights complaints go to die these days.
In addition, with regard to the looting, please note: that businesses are either insured or self-insure. If they are insured, like the very high-end stores one has seen being ransacked I would imagine that they have insurance on the expensive items which they have. Now, with the business so flat right now because of the pandemic and the response of the federal government being actually kind of anemic, businesses are in a very difficult spot.
It is most likely difficult for businesses to get paid under their business risk insurance for the consequences of the COVID-19 pandemic, particularly with these efforts to have states reopen which means that they COULD be open even if no customers show up. But, there is a long tradition of businesses being paid their insurance claims for property destruction and looting from what I understand. So there is actually an incentive given to businesses to have looting happen when their actual business is flat as their stores are empty. One might find me cynical, but actually this was a point brought to my attention by a former Harvard Business School colleague who clearly understands the dollars and cents business vision.
I have wondered whether the rise in insurance claims on the one hand may be one of the reasons that businesses are seeking COVID-19 waivers of liability for their employees so as to reduce or limit the rise of their business insurance premiums and workers compensation bills. What that means is that one could look for the invisible hand of the insurance industry again in the background as you see these stores being looted in such systematic and organized manners. And, one notes that for many days, the police just stood back allowing the mayhem rather than confronting the looters. That of course serves the purpose of delegitimizing again the peaceful protesters.
Finally, could there be undercover persons acting as agents provocateurs on the street but also in social media to try to gin up violence so as to further delegitimize these demonstrations? Well if anyone is familiar with COINTELPRO and the oppression of Martin Luther King, Jr. by the FBI back in the 1960’s you know the answer is of course these persons are there. Their role is to derail the whole movement. I should add that the intervention to so chaos by foreign state actors that we have known about since 2016 adds another layer or ginning up chaos and violence for their foreign policy objectives.
5. Singing songs and carrying signs; Mostly say, hooray for our side
So if one still has the courage to go out and protest, how does one do that when faced with so much being lined up to make you not become a movement or derail your movement?
It does seem to me that the right to dissent is enshrined in the Constitution and so no matter how many efforts to instill fear with what I call bogeyman tactics, one should have the courage of one’s convictions. But, in doing your demonstrations and protests be a leader.
I would suggest those who protest train themselves in how to protest non-violently, practice scenarios as to what they would do if this or that thing happened from the forces of cooptation or repression, and train themselves in how to identify agents provocateurs. Maybe have wristbands that identify your good people so you can see who are NOT your good people. That does not mean those without wristbands are bad people but do not assume that they are good people unless you know they are good people. Proceed peacefully at all times in their demonstrations.
6. Paranoia strikes deep; Into your life, it will creep; It starts when you’re always afraid; You step out of line, the man come and take you away
The state and the other institutions that fear the loss of control will keep trying the repression and cooptation to scare you and make you go home and be silent. Whether they are nice or nasty, they are playing the role of death-bringers to make you bend to fear and relent. To combat those types you have to bring light.
I want to tell you that I fear that there will be people killed like at Kent State and Jackson State. But, I do keep in mind that in Detroit in 1967, 43 people were killed. And that was in one riot in one city. And as far as I have seen so far over the past nine days, there have not been those levels of killings.
So we are nowhere near that kind of death toll from the demonstrations.
And remember, assume that anyone preaching violence is an agent of the state or institutions trying to delegitimize the demonstration and get you arrested and carted away. They may not be, but it makes life so much easier to assume that so as to vaccinate yourself against those kinds of mind games by agents provocateurs. It is really that simple.
And, rest assured, whenever you try to organize anything, there will be folks who will work as informants for the state and/or institutions who will work to sabotage this peaceful protest. Those informants will most likely be doing it not out of any particular ideological bent, but because it is a way to get paid and feed their families in a time of 40 million new unemployed. So do not be surprised when screw-ups happen. The screw-ups probably mean someone passed along information to make sure that the thing got screwed up.
On being arrested, remember that in the civil rights movement, being arrested was part of their strategy because that required the police to fill up the jails and the jails kept getting full. And then the police would have to feed those people who were jailed which hit the budgets. Now, some police put people in awful conditions as part of the intimidation effort and so that is very scary. Also, given the COVID-19 pandemic and the inability to do meaningful social distancing in such confined places, I worry that this part of the civil rights era ends up being a death sentence or at least a sickness sentence for many persons.
I like to say that the COVID-19 does not play and further, having seen a gentleman who survived being handed an $800,000 hospital bill of which he was to pay around $200,000, COVID-19 is not cheap. So those curfew violations and arrests as a strategy seem bad in a pandemic where one is risking one’s life to exposure to COVID-19 in closed-in spaces.
7. It’s time we stop, hey, what’s that sound; Everybody look what’s going down
So keep your courage up and come together in peace and with knowledge of how to be non-violent. Remember dissent is protected by the Constitution in the right of assembly.
But remember that there are many people who succumb to the fear-mongering and fear you are going to show up in their neighborhoods (remember how segregated America is?) and so they will enthusiastically support the repression of you and the cooptation because – here is the thing – they do not care about justice. They care only about their property values and their own safety.
And this will be the biggest problem for moving forward because these folks always swing law and order which is code for repression of minorities and anyone who dissents from the abnormal that they think of as normal.
So what that means is that more than putting signs in the yard and demonstrating will be needed.
If you want the police to change, you have to be willing to change their training and change the laws that let them feel they can do what they do. And the laws that in fact lead to the non-indictments and acquittals that you see all the time. If you are not willing to do that fight to change those laws, you are having a great time getting your emotions out, but ultimately you are just accepting that the same old capital punishment on the street (hat/tip Professor Jelani Jefferson-Exum, University of Detroit Mercy School of Law) will continue.
It is really that simple.
And so in addition to your demonstrating, you have to motivate your elected representatives at the local, state and federal level to do the right thing. Yes, you have to vote, but you have to also act NOW to insist on your elected officials changing things now whatever the election date. And that kind of effort is hard because there are plenty of institutions and private citizens (stand your ground anyone?) that prefer the police be allowed to continue to do these kinds of killings.
So here we are. Stay safe and remember, COVID-19 don’t play, so you have to add that to how you protest to protect yourself. Ten feet from each person around you. Don’t be in someone’s slipstream.
Remember, it is what we do together that will make the difference.
Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law.
Suggested citation: Benjamin G. Davis, For What It’s Worth: Homage to George Floyd, JURIST – Academic Commentary, June 5, 2020, https://www.jurist.org/commentary/2020/06/benjamin-davis-george-floyd/
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at email@example.com
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