The “right of the people peaceably to assemble,” as the U.S. Constitution’s first amendment calls it, is one of the pillars of liberty. That’s why all liberal democracies guarantee and protect it in some form. But is this right absolute? Could there be, in well-defined cases, a liberal case for abridging it?
This timeless question has just become newly urgent. As I warned might happen, the COVID-19 pandemic has, directly or indirectly, increased social turmoil in many countries, leading more people to assert their right to protest. But as the very different circumstances in Belarus, the U.S. and Germany showed again last weekend, what counts as a primal scream for freedom in one gathering easily turns nefarious and anti-democratic in another.
In Belarus, the protesters are indeed heroes deserving the sympathies of freedom lovers all over the world. Since a fraudulent election on Aug. 9, they’ve been bravely marching as their benighted dictator, Alexander Lukashenko, stomps around carrying an automatic rifle and keeps his thugs ready to bludgeon his critics. Types like him disdain freedom of thought, speech or assembly. That’s why philosophers since John Stuart Mill have considered these rights essential.
Elsewhere the picture is more complex, even in the “sweet land of liberty.” As COVID-19 and Black Lives Matter have blown off America’s veneer of social cohesion, some U.S. cities have of late resembled battlegrounds. Last weekend, supporters of President Donald Trump gathered in Portland, Oregon, and drove downtown in a caravan of hundreds of banner-draped trucks. There they clashed with mobs of “anti-fascist” counter-protesters. Paintball guns were shot and fists thrown, until actual gunfire erupted and a man lay dead.
Clearly, neither side in this particular exercise of the right to assemble emphasized the first amendment’s stipulation to do so “peaceably.” The intention was to antagonize and intimidate opponents, not to air arguments for the betterment of democratic discourse. The ubiquity of guns in America makes any such confrontation potentially lethal.
And then there’s the peculiar case of Germany, a country that has been sensitized by its own Nazi history to the dangers that extremists pose. Protest movements against the various coronavirus lockdowns have swept across much of Europe, but they’ve grown particularly strong in Germany. This is surprising, given that Germany has controlled the outbreak relatively well and imposed only mild restrictions.
Nonetheless, the crowds of protesters are growing. Many are spouting outlandish conspiracy theories inspired by the QAnon movement in the U.S. and striking anti-Semitic overtones. Increasingly, far-right extremists and even full-blown neo-Nazis are mixing into the crowds.
Last weekend, almost 40,000 demonstrators showed up in Berlin. In the evening, the protest turned violent, as several hundred rioters stormed the barriers protecting one entrance of the Reichstag, Germany’s parliament building. Many carried the black-white-red flags of Imperial Germany, a symbol that nowadays stands for the far right, since the Nazi swastika is banned. Three defiant policemen barely managed to keep them out.
Frank-Walter Steinmeier, Germany’s president, called the violence “an intolerable attack on the heart of our democracy.” The government and mainstream political parties all lined up to condemn the transgressions. As hooligans, politicians and ordinary Germans alike are well aware, the Reichstag is where Germany’s democracy was literally and metaphorically set afire in 1933.
All of this points to an ambiguity about the freedom of assembly. In places from Belarus to Hong Kong, this right either doesn’t exist or has been trampled upon. In the U.S. and Germany the right does exist but is in frequent tension with those who cynically abuse it.
Even in the liberal tradition, freedom of assembly was never meant as an absolute right. Mill famously argued that it can and should be abridged “to prevent harm to others.”
Berlin’s interior minister, Andreas Geisel, had tried to invoke this “harm principle” to stop the demonstration. He argued that the protesters were likely to scorn rules about social distancing and mask use just as they had done at another event on Aug. 1. This would accelerate contagion and put at risk people not even participating. But a court overruled him, arguing that the mere possibility that rules would be broken doesn’t suffice.
This reasoning was surprising, given that the harm principle must of necessity apply in advance of injury. What probably moved the court was Geisel’s tactical mistake of also citing the likely presence of neo-Nazis at the event. As soon as politics was involved, the judges felt they had to err on the side of freedom of assembly.
As well they should. But even the distinction between political opinion and harm isn’t always clear, and different nations will draw different lines. In the U.S., free speech protects even Holocaust denial. In Germany and 15 other European countries, as well as Israel, it doesn’t, on the reasonable premise that it’s unbearable — and thus harmful — to the Nazis’ victims and their descendants.
Amid the worldwide rise of extremism, liberal democracies are in a bind. If they curtail their hallowed freedoms, they allow half-wits of all stripes to turn their “martyrdom” into propaganda. But if they provide the loonies a stage, they let cynics avail themselves of democratic rights to undermine the democracies that guarantee them.
Ultimately, the conundrum of liberty is not a legal question but a cultural one. As soon as there’s a threat of harm, the state must intervene. But as long as protesters merely mouth off in ways that are disgraceful, the state must stand back. In these cases, it’s up to the rest of us to speak up and reclaim our democracies from the crackpots and demagogues. Even in 1933, the ensuing disaster could only happen because ordinary Germans allowed it.
Andreas Kluth is a columnist for Bloomberg Opinion. He was previously editor in chief of Handelsblatt Global and a writer for the Economist.
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