My colleague Eric Muller, who teaches at UNC’s Law School and has done important and wonderful work on Japanese internment during World War II, responded to my previous post about the toppling of Silent Sam as an act of civil disobedience in this way:
“A thoughtful and excellent piece about the nature of the act of toppling Silent Sam (our Confederate statue on campus) by my UNC colleague John McGowan. I am with him right up to the very last couple of lines. But I part with him there.
What is the moral justification for lying to the police – effectively committing the crime of filing a false police report – in order to impede the prosecution and possible conviction of those who engaged in civil disobedience? When a person thinks things through and decides to engage in an unlawful act in order to make a larger moral or ethical point, or to bring about some change, it seems to me that she has made the choice to risk prosecution and conviction. In fact, it’s precisely the acceptance of that risk that makes the act courageous and gives it broader meaning. So I am hard-pressed to see a case for others telling lies in order to prevent the outcome that the civilly disobedient person knowingly risked.
(And this is not even to mention the fact that if hundreds of people file false police reports, that will impede the prosecution not just of the people who toppled Silent Sam, but will slow the administration of justice in that jurisdiction more generally. What’s the moral case for that?)”
Eric’s response has pushed me to think through my notions of and intuitions about civil disobedience. I will end up, to a fairly large extent although not entirely, disagreeing with his disapproval of having many people step forward as perpetrators of the toppling—but it is going to take me some time to get there. So I am begging your indulgence and your patience as I try to work this through.
Civil disobedience is the act of disobeying a law, where the justification for that disobedience is an appeal to some other standard of judgment apart from sheer (or mere) legality. In the name of justice, of the right, of the good, or even of a “higher” moral law, a civil disobeyer says: “I cannot act legally in this case because it violates my sense of what is the right thing to do.”
Such an act can be individual. Some pacifists and some conscientious objectors will defy conscription laws because, as a matter of individual conscience, they cannot participate in a war. How they define participation can also vary, with some COs willing to serve as medics or in other non-combat roles, while others think that any assistance offered to the war effort is wrong. Those who take this latter position have two choices: one, to go to prison or two, to attempt to evade the law’s punishments (by, for example, going into exile, as many did during the Vietnam War.) Evasion could also, of course, just mean lying low, trying to avoid the law’s notice.
It seems to me that everything changes drastically when acts of civil disobedience turn rhetorical—that is, when such acts are not a question of an individual attending to her own conscience, but are publically enacted violations of the law that seek to demonstrate to fellow citizens that law’s deficiencies. An act of civil disobedience, in such cases, is the staging of a dramatic argument. It asks the non-participating spectators, those who are simply witnessing this forced (by the civil disobeyers) confrontation between the law and those who deem it unjust, to decide what side they are on. Do these spectators favor the continuation of the law in question and favor the fullest prosecution of the civil disobeyers—or do those spectators recognize that the law is deficient in this case, and actually want to thank the disobeyers for making that fact dramatically clear?
First consequence of this rhetorical view: the act of civil disobedience must be public, must be visible. The CO doesn’t necessarily turn his evasion of conscription into a public spectacle. But those who practice civil disobedience in an attempt to sway public opinion, as a tactic within a larger plan to change the law, must act in public—and, in fact, desire the widest possible publicity in order to grab the attention of the widest possible public. Thus, as distinct from the ordinary criminal, who tries to break the law invisibly, the civil disobeyer performs his law breaking in the light of day. Otherwise, she cannot achieve her goal, which is extensive public deliberation about the justice of the law.
Breaking the law in full view means that evading punishment becomes difficult, if not impossible. In fact, as Eric alludes to in his comment, many theorists of civil disobedience take the full assumption of responsibility for the act of disobedience as a crucial component of civil disobedience. The dignity and the impact of the act is heightened by the stalwart presentation of oneself in the public sphere: I committed this act of disobedience in the name of these principles, and am fully willing to be called to account by the law for my action.
Let’s call that the heroic model of civil disobedience—and I use that term “heroic” completely . The gambit here is that the spectacle of the law prosecuting these individuals of conscience will aid the cause of revealing the law’s injustice (according to the “other” standard being appealed to against the law’s own standards). The nobility of the disobeyers (their integrity and willingness to undergo punishment from an unjust law in the name of their alternative notion of what is right) furthers the attempt to sway public opinion to their side.
And, certainly, we needn’t be utterly rhetorical about this. Stoically accepting responsibility and punishment is not just a rhetorical ploy; it also accords with the disobeyer’s own sense of dignity, which includes differentiating her acts from those of a criminal. That is why, for so many dissidents, the distinction between a political prisoner (a prisoner of conscience), and a criminal prisoner is such an important one.
The heroic stance can be summed up in this way: I did this act, I did it in full public view because I am proud of this act since I fully believe it was the essentially right way to act even though it was illegal, and I will take full responsibility for the consequences of the act, including being punished by the law.
But there are alternatives to the heroic view. And those alternatives are what I need to explore here. I am deeply attracted to the heroic view—and fully respect Eric’s position that the heroic route is the way to go. But I do think there are circumstances where it is not the optimal strategy—and I find (as I reflect upon these matters, as Eric has pushed me to do) that I am willing to jettison some of the heroic in the name of effectiveness. I am committed to civil disobedience successfully leading to the reformation or repeal of bad laws—and unheroic approaches may be more effective in some cases.
Let me throw out a big question first, even though I will postpone full consideration of how to answer it. Why should I, who think a law unjust, enable (through cooperation with the process of prosecuting me and others for violating it) the smooth functioning of that law? Having stated the point so abstractly, let’s think about it applies in four different cases.
Case 1: One way to render a law a dead letter is massive non-compliance. Prohibition in American history is the obvious example, but there are others. Any law’s effectiveness depends on large-scale voluntary compliance. If the strategy of dissenters is to inspire wide-spread non-compliance, there is no particularly compelling reason to adopt the heroic strategy of being prosecuted. Instead, the strategy is to make the law look ridiculous, incredible. They want to (think they can) stop us from doing that? Let them try.
Case 2: Jim Crow laws. The strategy here was not direct violation of those laws—with the consequent punishment of such violators. Instead, the strategy was to stage massive public demonstrations to publicize the widespread dissent from those laws. The aim was repeal (or the court nullification of the laws as unconstitutional) and the enactment of new legislation (Civil Rights Act, Voting Rights Bill) that would make segregation illegal. If laws were going to be violated in this movement, it would be the violation of laws that hampered public expressions of opinion. More to the point: the civil rights demonstrators provoked their opponents into over-reaction, which played badly to a wider national audience. Before he turned to economic issues and to racism in the North, MLK won the rhetorical battle. His movement did so, in part, by having its members go to prison, but much more important was the public spectacle of the battering of non-violent demonstrators by infuriated police and other public authorities. Arguably, the anti-Vietnam protestors were not as rhetorically successful because not as disciplined in their non-violence and because they never had—or created—the solidarity among whites that the civil right movement (at least until 1965-66) achieved among blacks.
Case 3: Immigration laws. When Trump was elected, I figured that meant I would end up getting arrested some time in the coming four years. It was just a matter of time—and of choosing the occasion where I felt it might make some positive difference, or be such an urgent matter of conscience that I would have to make a stand. I assumed the real push-comes-to-shove moment would involve immigration. If the Trump administration were to attempt to expel (for any reason) undocumented immigrants from my community or to harass/deport foreign students on our campus, I would feel compelled to do something to hinder such efforts. Here is the case where I find myself most at odds with Eric. I would consider every and any way of hindering the law’s enforcement justified (and imperative upon me personally) in that case—and think the heroic stance would be utterly counter-productive. The goal would be to throw as much sand into the gears as possible—using every single tactic that could frustrate the law’s ability to operate. I wonder how Eric would think about this case in relation to the internment of the Japanese during World War II. I think also of the Danish all wearing yellow stars as a way of frustrating the Nazi’s murderous anti-Semitism. This would precisely be the case of presenting the law with more perpetrators, more deemed guilty under its understanding of guilty, than it could handle.
Case 4: Silent Sam. So what kind of case is Silent Sam? A very odd case once I am forced to think hard about it. Odd, first of all, because of the ambiguities I have noted (in my previous post) about whose property the statue is anyway. And then there is all the stuff about “destruction of property” as referenced in the statement from Margaret Spellings et.al. Which is really a red herring, because the real nub here is a specific state law—not some general set of property rights. That specific state law says that a certain class of property—namely memorials on public property—are removed from all public deliberation about their desirability. It is widely acknowledged that general property rights do not trump all other considerations. There are grounds on which property rights can be overruled or suspended. But the state law on the public memorials says that kind of debate cannot be held, that kind of case cannot be brought forward. In short, it takes out of a community’s hands, the ability to decide, after a due process of deliberation, whether it wants a memorial present or not in its community.
It is, as I also mentioned in my previous post, precisely in cases where legal methods of appeal and redress are blocked that civil disobedience is most likely to occur. Again, the Jim Crow South offers the classic example. When the law and public officials and the courts are completely stacked against you, civil disobedience is one of the few alternatives left (violent rebellion is another). Legal avenues for the removal of Silent Sam appeared completely blocked. (Of course, as Eric eloquently argued in public—and within university circles—that there was a legal pathway for removal available, but the university refused to pursue that path, not by rejecting it outright but by refusing to ever acknowledge that such a path existed. A frustrating approach to the whole dilemma of Silent Sam to say the least. But from start to finish, the university’s leadership has failed miserably in its response to the presence of Silent Sam on our campus.)
A further oddity: even though we have this state law that was blocking any legal way to remove or move Silent Sam, the protestors were not interested in the repeal of said law. They just wanted to remove Sam, the law be damned. So once they toppled Sam, their work was done. (Unless if gets undone by an effort to re-install the statue.) Unlike many cases of civil disobedience, there is no on-going need to demonstrate the law’s injustice, to win over a public to the law’s repeal.
Thus, their work being done, why not “try to get away with it”? We did the right thing, the demonstrators might think, so why should we be punished for it? Eric’s position, which I respect and 20% agree with, is that the toppling of the statue only becomes a criminal action, not an act of civil disobedience, if you try to evade punishment.
But here’s where I take my 80% stand: it was a collective act of civil disobedience. Allowing the law to single out a handful of “ring-leaders” will only support their desired narrative of a “few” trouble-makers and outside agitators. I think the rhetorical battle is ongoing in this case—and that one key rhetorical point to make is that there is wide-scale endorsement of Monday’s action, which includes wide-scale endorsement of the means used (an unauthorized toppling of the statue) and thereof a wide-scale acceptance of responsibility for that action. If that gums up the works, so be it.
There is, after all, fairly wide discretion about which laws to enforce—and to what extent. Making it both absurd and costly to enforce the protection of Silent Sam, making the state divert what are always limited resources, to this particular vendetta, helps to make the argument about their priorities and their values that we—those against the prominent presence of Silent Sam on our campus—have been trying to make all along.
In short, it seems to me an acceptable tactic of a campaign of civil disobedience in certain cases to make the functioning of the law in question difficult. And in cases where there are wide divergences of opinion, I also think that standing in solidarity with those in your camp is incredibly important. There will be various attempts to divide and conquer going forward, some dependent on making the costs of solidarity high, some dependent on painting the dissenters in certain kinds of way—and then tarring fellow travelers with the same brush. Anticipating this ongoing rhetorical battle, I still think (despite Eric’s cogent arguments) that counter-acting the law’s attempt to identify a few perpetrators by a mass declaration of guilt is the right move. My “moral case” (which is what Eric asks for) is based, then, on these claims of solidarity, in the name of the collective that both enacted and endorsed the toppling—and which wishes to resist the attempt to label it the action of just a few outliers, some easy to isolate and dismiss dissidents.
McGowanBlog 