Free speech and civil disobedience – let’s get the differences straight at UCSC protests

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For the past few months, the news has been full of stories of student protests related to Gaza. Until the recent publication in Lookout of a wonderful opinion piece by UC Santa Cruz lecturer Ryan Coonerty, a former Santa Cruz mayor and county supervisor, nobody has bothered to write anything about the distinction between free speech, which ought to be allowed and protected, and civil disobedience, which should be undertaken only with the assumption that one will be arrested and face legal consequences of some kind for breaking the law.

Let me begin by disclosing that I have been arrested about a dozen times in my life in civil disobedience demonstrations. These include demonstrations over the war in Vietnam, apartheid in South Africa and voting rights for African Americans in Southern U.S. states. About six or seven of these arrests were at UCSC and they included blocking the campus entrance or other public streets or occupying university buildings like Hahn Student Center, where the administration used to have its offices. I was indicted by a federal grand jury for organizing a mass draft-card burning in New York that kept me out of the draft as a “security risk to the United States.”

I am in sympathy with the primary demand of the UCSC demonstrators this spring – a cease-fire in Gaza and the return of all hostages. I must point out that there are or have been demands by demonstrators that I do not support, such as banning Jewish organizations on campus (which, unlike criticism of Israeli policy, is antisemitic). But my criticism here is not against the goals of the demonstrators – even when I disagree with them.

My complaint is the apparent inability of the demonstrators and their supporters, some administrators on college campuses and, most recently, a majority of the academic senate at UCSC, to distinguish between free-speech rights for students and civil disobedience. 

The latter provides the justification if not the necessity of using police to enforce the law and arrest demonstrators.

Of course, one hopes that police will not use gratuitous violence against demonstrators in making arrests. We’ve all seen too many examples of police forces using police dogs, fire hoses and clubs against civil rights demonstrators who were not resisting, but prepared to accept their arrests for breaking some law or valid police order. I myself have been involved in civil disobedience demonstrations where police or sheriffs waded into a crowd swinging clubs while we as demonstrators sat passively on the ground waiting to be arrested.

I believe that in civil disobedience the demonstrators have a choice of cooperating with their arrest, for example by holding out hands for handcuffs and standing and walking with arresting officers, or not cooperating by simply going limp, which will require officers to drag or carry protesters into arrest vehicles. Based on my past experience of going limp and being dragged down stairs, I now would recommend cooperating with an arrest during a civil disobedience action.

But, when demonstrators link arms or in other ways actually resist arrest, which is itself a crime, I believe the police have no option but to apply the force necessary to make an arrest.

In pictures of the arrests at UCSC, it is clear that demonstrators are linking arms and resisting police arrests. In one case, a demonstrator who was spitting at police had a bag placed over his head. Certainly, this led to a chilling picture, but what were the police supposed to do? 

I suppose they could have hit him with a club to make him stop spitting, but the bag, despite its gruesome appearance, was probably the best option and the demonstrator brought that on himself.

There is no free speech “right” to spit at police who are carrying out the law or valid orders.

The purpose of a civil disobedience action is to disrupt business as usual and bring public attention to an issue of extreme importance. It shouldn’t be used for minor disagreements with public policy, but for big issues and to express moral outrage. I think we can all concede that what is happening in Gaza today rises to that level. 

At the same time, I do wish that demonstrators, whatever their cause, would also use a bit of common sense. 

There are varying stories on what happened when an ambulance approached the campus entrance to respond to a child on campus facing a medical emergency. Clearly, the protesters should have let it through their picket at the campus entrance. And – for whatever reasons – this didn’t happen smoothly. At worst, as some claim, the demonstrators blocked the ambulance, and at best, they created a chaotic situation where the police were afraid to let the ambulance through the picket, not knowing how the demonstrators would respond. This is dangerous.

Arrests of demonstrators blocking both of the two campus entrances need to be relatively swift because the campus is not just an educational institution, but home to many. Families live on campus and parents need to pick up their children from local schools and make other critically important trips into town. So, campus administrators can’t just ignore demonstrations that block both entrances and move classes online and let “the problem” go on indefinitely.

Civil disobedience includes accepting the legal consequences of one’s actions. That used to be the norm at UCSC demonstrations. In general, the campus and local police and those from other UC campuses who were brought in for large demonstrations handled arrests with a minimum of necessary physical force. 

And protesters – including me – cooperated with the process. A clear line used to exist between those who might be near the scene of the arrests, but who were not actually violating any law or police order, and those who expected to be arrested. That has apparently changed.

So have penalties or consequences one faces for a civil disobedience arrest. 

There are two basic ways to attempt to avoid paying a penalty for civil disobedience. The first is to use your day in court to argue that your violation of the law – some misdemeanor or infraction like blocking traffic, jaywalking, trespassing, refusing a police order, etc. – should not be enforced because you were following some “higher law or morality” that made your action legal. That worked for me only one time in all of my arrests, when a jury dismissed charges based on that argument with respect to an anti-Vietnam War demonstration. 

That kind of “jury nullification” is rare and one certainly cannot expect it in most cases.

The other possibility is to have a demonstration with so many participants that it is impossible to arrest them all or the court decides to simply dismiss the charges because it is unable or unwilling to process so many cases. That worked for me once, is also rare, but might be a good goal for an organizer of protests. 

In the most recent demonstrations, about 100 students and some outsiders interfered with the education of 20,000 students. Again, I get the high level of moral concern about the people of Gaza, but there has to be a consequence for acting on one’s beliefs in a way that trumps the needs of thousands of other people who may or may not agree.

But what remains is the question of what the consequences should be for civil disobedience. In all of my arrests for civil disobedience, the sentence was either a couple of days in jail or community service in lieu of a fine. In the recent UCSC cases, the protesters were banned from campus for two weeks. In many cases that meant students lost access to their dorm rooms and meal plans and might miss the last two weeks of school, failing their courses.

That level of penalty should be reserved for repeat offenders who come back after their first arrest and engage in civil disobedience a second time. At least that used to be the case.  

So, I think it is time for a reset. Civil disobedience and free speech are not the same thing and need to be treated differently. 

I think that people who support the protesters’ goals but are unhappy with the demonstrations as well as those opposed to both the goals and methods of the protesters would be more understanding if they knew that the protesters accept that they are risking legal sanctions for their actions. And, if police don’t use gratuitous violence to effect arrests, they should not be criticized for doing their jobs.