10 theses on the right to demonstrate

The fundamental right to freedom of assembly has a good reputation: In our democracy – it is said – you can demonstrate, while in other countries demonstrations are banned and bludgeoned. It is often concluded that permission to protest means that protesting is unjustified by its very nature insofar as it opposes the state: because the democratic state looks after the freedom of its citizens, it is just bad manners to denigrate it by criticizing it at demonstrations.

Even critical people hold a positive judgment about the fundamental right to freedom of assembly: They see it as a means for them to protest. And when they find out what is meant by freedom of assembly at G20 demos or the passing of the Police Task Act, they do not take it as a reason to re-examine their judgment, but stick to it with a campaign to “Defend Fundamental Rights.” They insist on a fundamental right separate from the requirements under which it is only permitted at all. In opposition to how they are treated in practice by the authority that grants this right and shows them how it is intended and only applies at all, they ideally claim a “higher” right that they are entitled to which stands above the state authorities who have violated it here.

The fundamental right to freedom of assembly does not deserve its good reputation, as the following theses will show.

1. When demonstrators want to make their protest issues public, convince people with their arguments and invite them to participate, they usually have already had some bad experiences with the defenders of the fundamental right to demonstrate, the politicians and the media: On the one hand, they see themselves disappointed or harmed by the government’s domestic or foreign policies, and on the other hand they have recognized that their representatives and the established democratic media – the “fourth estate” – can’t be won over to enacting the substance of their criticism in practice. And they do not want to be assimilated into the diversity of opinions. Their complaints are lost on the powerful, their concerns are either downplayed or ignored by the media, so they resort to the means of demonstrations. Convinced of the effectiveness of this form of protest, they present themselves as a counter-public that wants to impress the public with protests that are as massive as possible and thus help spread their criticism of the government’s policies.

2. And they are also allowed to do this. They are allowed to express their discontent; they may demonstrate. It is a constitutional right which permits everyone in this country to gather in public and draw attention to various issues. This is guaranteed by the defenders of the constitution. This permission is therefore a matter of state power; it supervises and controls it. This freedom exists only under state conditions: It is therefore inextricably linked to restrictions from the outset. Further details can be found in the constantly tightened right of assembly. With these restrictions, the state makes it clear that the “disturbance of the peace” associated with a demonstrating counter-public must be carried out “peacefully and without weapons” according to its guidelines.

3. In exercising the universal and equal fundamental right, every demonstration is asked the crucial question for democratic rule: “Will you accept the democratic state’s monopoly on violence or will you ignore it?” The license to demonstrate is therefore not conceded without this separate test as to the compatibility of the protest’s concerns and events with loyalty to the democratic system. Each demo must prove itself – before and regardless of its concern – by the standards of permissible conduct. The fundamental right that bestows dissatisfied citizens with the freedom to protest always conveys the suspicion that demonstrators are actually violent disturbers of the public peace.

4. Submission to the state’s monopoly on violence is not only the sine-qua-non of demonstrations. The demo-protest itself must highlight its “peaceful” intent: The protest only legitimates itself as authorized when the demonstrators voluntarily put on their own “uniforms” and enforce the restrictions themselves. The protesters thus place respect for the primacy of public order above their objection. The demonstration’s criticism of the government’s policies gets pushed into the background.

5. The test is passed when the demonstrators stay within the framework of what is permitted, thus accepting in practice the primacy of non-violence while protesting. This includes relativizing their concern – by factoring it into the form of the conditional permission. If, however, leftists do not want to drop their protest by submitting to the rules for order and, in the interest of their concern, break the rules, then the state sees an attack on law and order. This confirms the state’s suspicion that the counter-publicity of demonstrators is camouflage for counter-violence. The test for legal compliance has not been passed, so a state-subversive attitude is apprehended in the formalism of the demeanor: it then says: “no (demo) freedom for the enemies of (demo) freedom.” Violating requirements simply indicates that the demonstrators have a state-subversive intent – regardless of whether they pursue such an intent or not; and new police rules reserve the right to take such identified enemies of the state into precautionary detention.
Either way, the character of the protest is negated by the permission of the protest: On one hand, by relativizing the issue in the priority of the requirements for order and, on the other hand, by reducing the protest, predefined as symbolic political disobedience, to apolitical violence and punishing it.

6. The enforcement of the requirements – and their observance by the protesters – not only demonstrates the state’s power. It also deprives the demonstration itself of its true concern. By committing it to an orderly impotent protest, the criticism is reduced to an expression of opinion. With the disciplining of their protest, the state makes it clear to the critics, who really don’t want to let themselves be absorbed in the pluralism of opinions and is the reason they make use of the state’s right to demonstrate, that protest is only permitted when they reduce it to just another opinion; otherwise it is discredited, delegitimized and criminalized as an unauthorized disturbance.

7. The insistence of demonstrators on intervening in practice is therefore defined as a noncommittal complaint and an impotent appeal to be heard: the state takes every orderly protest as – if anything – a request; if the protesters do not already explicitly address it as the responsible addressee. As far as the state is concerned, it is entirely up to it to decide to what extent or whether the protest is somehow taken into account in its policies at all. For the state, these practical concerns amount to nothing more than the more or less critical opinions of citizens. Only in this way does a protest fit with its fundamental right. Only then may a demonstration enjoy the cautious support of a part of the established media. Otherwise, and in the majority of cases, demonstrations are certainly permitted, but simply disturbances of the ordinary and proper democratic run of things – namely, the advisable relation between free opinion and practical politics.

8. Result: What the state has already instituted with the permission of free expression of opinion, namely its reduction to insignificance by integration within the system of the bourgeois public sphere, it also wants to accomplish wherever critical people set out to use the basic right to a demonstrative counter-public sphere. Its ultimate intention with the permission to demonstrate is, if not to transfer all its citizens’ reasons for dissatisfaction into consent, then at least to not let it be effective or to matter. It is about disciplining criticism of the state by allowing protest as mere opinion.

9. Demonstrations are not hushed up by the free press, but as a rule investigated according to the suspicion of violence, hence they are also evaluated by the public as to whether they keep within the narrow range of permitted expressions of opinion. So the audience learns not much about the concerns of the demonstrators, but a lot about the question as to whether they have acted in line with the prescribed order, i.e. “non-violently.” This does not testify to the bad faith of journalists, but that rather, in acting as laptop protectors of the public order, they are biasedly following the logic of the fundamental rights – and thus the standards of their own monopoly on the formation of public opinion.

10. When demonstrators – mainly leftists – join this media reduction of their protest to the “question of violence,” lament the inappropriate use of state violence and expose “fabricated lies” by the press, they are concerned with proving the state unjust. They will not let their mouths be shut – they demonstrate and celebrate this. Over and over again, the content of their protest fades into the background. Taking the next step is not out of the question: declaring that going through with the demonstration under aggressive police supervision is already a victory for the cause.
As for their own not at all pleasant version of the fundamental right to criticism: What they complain about with regard to their portrayal by the media, their obstruction by the state, they resolutely demand against the right-wing: forbid their demos, ban them from the public sphere!

Translated from a text by Freerk Huisken