PROTEST AND DISSENT NOMOS LXII Schwartzberg_i_289.indd 1 12/18/19 3:13 PM NOMOS Harvard University Press I Authority 1958, reissued in 1982 by Greenwood Press The Liberal Arts Press II Community 1959 III Responsibility 1960 Atherton Press IV Liberty 1962 V The Public Interest 1962 VI Justice 1963, reissued in 1974 VII Rational Decision 1964 VIII Revolution 1966 IX Equality 1967 X Representation 1968 XI Voluntary Associations 1969 XII Political and Legal Obligation 1970 XIII Privacy 1971 Aldine- Atherton Press XIV Coercion 1972 Lieber- Atherton Press XV The Limits of Law 1974 XVI Participation in Politics 1975 New York University Press XVII Human Nature in Politics 1977 XVIII Due Process 1977 XIX Anarchism 1978 XX Constitutionalism 1979 XXI Compromise in Ethics, Law, and Politics 1979 XXII Property 1980 XXIII Human Rights 1981 XXIV Ethics, Economics, and the Law 1982 XXV Liberal Democracy 1983 Schwartzberg_i_289.indd 2 12/18/19 3:13 PM XXVI Marxism 1983 XXVII Criminal Justice 1985 XXVIII Justification 1985 XXIX Authority Revisited 1987 XXX Religion, Morality, and the Law 1988 XXXI Markets and Justice 1989 XXXII Majorities and Minorities 1990 XXXIII Compensatory Justice 1991 XXXIV Virtue 1992 XXXV Democratic Community 1993 XXXVI The Rule of Law 1994 XXXVII Theory and Practice 1995 XXXVIII Political Order 1996 XXXIX Ethnicity and Group Rights 1997 XL Integrity and Conscience 1998 XLI Global Justice 1999 XLII Designing Democratic Institutions 2000 XLIII Moral and Political Education 2001 XLIV Child, Family, and State 2002 XLV Secession and Self- Determination 2003 XLVI Political Exclusion and Domination 2004 XLVII Humanitarian Intervention 2005 XLVIII Toleration and Its Limits 2008 XLIX Moral Universalism and Pluralism 2008 L Getting to the Rule of Law 2011 LI Transitional Justice 2012 LII Evolution and Morality 2012 LIII Passions and Emotions 2012 LIV Loyalty 2013 LV Federalism and Subsidiarity 2014 LVI American Conservatism 2016 LVII Immigration, Emigration, and Migration 2017 LVIII Wealth 2017 LIX Compromise 2018 LX Privatization 2018 LXI Political Legitimacy 2019 LXII Protest and Dissent 2020 Schwartzberg_i_289.indd 3 12/18/19 3:13 PM NOMOS LXII Yearbook of the American Society for Political and Legal Philosophy Schwartzberg_i_289.indd 4 12/18/19 3:13 PM PROTEST AND DISSENT Edited by Melissa Schwartzberg NEW YORK UNIVERSITY PRESS • New York Schwartzberg_i_289.indd 5 12/18/19 3:13 PM NEW YORK UNIVERSITY PRESS New York www.nyupress.org © 2020 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Names: Schwartzberg, Melissa, 1975– editor. Title: Protest and dissent / [edited by] Melissa Schwartzberg. Description: New York : NYU Press, 2020. | Series: Nomos ; LXII | Includes bibliographical references and index. Identifiers: LCCN 2019012041 | ISBN 9781479810512 (cl : alk. paper) Subjects: LCSH: Protest movements. | Social movements. | Civil disobedience. | Democracy. | Political culture. Classification: LCC HM883 .P758 2020 | DDC 303.48/4--dc23 LC record available at https://lccn.loc.gov/2019012041 New York University Press books are printed on acid- free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook Schwartzberg_i_289.indd 6 12/18/19 3:13 PM CONTENTS Preface ix Melissa Schwartzberg Contributors xi Introduction 1 Melissa Schwartzberg PART I. JUSTIFYING CIVIL AND UNCIVIL DISOBEDIENCE 1. Uncivil Disobedience 9 Candice Delmas 2. Disobedience in Black: On Race and Dissent 45 Juliet Hooker 3. The Radical Possibilities of Protest 64 Amna A. Akbar PART II. THE STRATEGY OF POLITICAL PROTEST 4. Competing Theories of Nonviolent Politics 83 Karuna Mantena 5. No Justice, No Peace: Uncivil Protest and the Politics of Confrontation 122 José Medina 6. Protest Fatigue 161 Richard Thompson Ford vii Schwartzberg_i_289.indd 7 12/18/19 3:13 PM viii Contents 7. “No Ways Tired”: An Antidote for Protest Fatigue in the Trump Era 189 Susan J. Brison PART III. THE DEMOCRATIC SIGNIFICANCE OF PROTEST AND DISSENT 8. Defining Nonviolence as a Matter of Law and Politics 201 Tabatha Abu El- Haj 9. On the Strike and Democratic Protest 237 John Medearis 10. Are Protests Good or Bad for Democracy? 269 Susan Stokes Index 285 Schwartzberg_i_289.indd 8 12/18/19 3:13 PM PREFACE MELISSA SCHWARTZBERG This volume of NOMOS— the sixty- second in the series— emerged from papers and commentaries given at the annual meeting of the American Society for Political and Legal Philosophy, held in con- junction with the annual meeting of the American Political Sci- ence Association, on August 31, 2017. Our topic, “Protest and Dis- sent,” was selected by the Society’s membership. The ASPLP conference consisted of panels organized around three principal papers and commentaries: (1) “Protest Fatigue: When Mass Demonstrations Become Routine,” by Richard Thomp- son Ford, with commentaries from Susan J. Brison and John Med- earis; (2) “In Defense of Uncivil Disobedience,” by Candice Del- mas, with commentaries from Juliet Hooker and Amna A. Akbar; and (3) “Competing Theories of Nonviolent Politics,” Karuna Mantena, with commentaries from Tabatha Abu El-Haj and José Medina. The current volume features revised papers from all of the conference participants, as well as a paper solicited from Susan Stokes. I am grateful to all of these authors for their excellent con- tributions. Thanks also to Arina Cocoru and Sam Boren Reast of New York University for their valuable assistance during the edito- rial and production phases of this volume. I wish to thank the editors and production team at New York University Press, particularly Ilene Kalish, Alexia Traganas, and Sonia Tsuruoka. On behalf of the ASPLP, I express our gratitude to the Press for its ongoing support both for the series and for the tradition of interdisciplinary scholarship that it represents. The ASPLP is also grateful to Brown University, Duke University, New York University, and Stanford University for subventions in sup- port of this and future NOMOS volumes. Finally, I thank former editor Jack Knight and the members of the ASPLP council—President Stephen Macedo, Vice Presidents ix Schwartzberg_i_289.indd 9 12/18/19 3:13 PM x Preface Derrick Darby and Yasmin Dawood, at- large members Michael Blake and Ekow Yankah, Immediate Past President and Secretary- Treasurer James Fleming, as well as former Vice President Michele Moody- Adams, former at- large members David Estlund and Debo- rah Hellman; former president Debra Satz; and former secretary- treasurer Andrew Valls — for their support and advice. Schwartzberg_i_289.indd 10 12/18/19 3:13 PM CONTRIBUTORS Tabatha Abu El- Haj Associate Professor of Law, Drexel University, Kline School of Law Amna A. Akbar Associate Professor of Law, The Ohio State University, Moritz College of Law Susan J. Brison Eunice and Julian Cohen Professor for the Study of Ethics and Human Values and Professor of Philosophy, Dartmouth College Candice Delmas Assistant Professor of Philosophy and Political Science, Northeastern University Richard Thompson Ford George E. Osborne Professor of Law, Stanford Law School Juliet Hooker Professor of Political Science, Brown University Karuna Mantena Professor of Political Science, Columbia University John Medearis Professor and Chair of Political Science, University of California, Riverside José Medina Walter Dill Scott Professor of Philosophy, Northwestern University Melissa Schwartzberg Silver Professor of Politics, New York University Susan Stokes Tiffany and Margaret Blake Distinguished Service Professor, University of Chicago xi Schwartzberg_i_289.indd 11 12/18/19 3:13 PM Schwartzberg_i_289.indd 12 12/18/19 3:13 PM INTRODUCTION MELISSA SCHWARTZBERG In May 2016, the membership of the American Society for Political and Legal Philosophy selected the topic of “Protest and Dissent” for the 2017 conference. This selection predated Trump’s election and Brexit, and the ensuing protests. It occurred before the anti- Erdogan protests in Turkey, before the Iranian economic demon- strations, before the Venezuelan “La Madre de todas las marchas,” and before the French gilet jaunes. Although the selection surely reflected the salience of Occupy Wall Street and the emergence of #BlackLivesMatter, it was hard to imagine then that, by spring 2018, one in five Americans would claim to have participated in a protest or rally during the intervening two years, according to a poll conducted by the Washington Post and the Kaiser Family Foundation.1 Like all NOMOS volumes, Protest and Dissent brings together the work of philosophers, legal scholars, and political scientists to shed light on themes of enduring importance. Rarely, however, are the volumes quite so timely, and the chapters so unified in their sense of what questions matter, while reflecting sharp (if civil) disagree- ments among the authors. The core themes of the volume include the ethics of civil and uncivil disobedience, asking whether dis- tinguishing between civil and uncivil forms of disobedience is tenable; whether we should distinguish liberal and radical forms and justifications of protest; whether the means of protest can or should be distinguished from its ends; and when we can expect protests to elicit increased engagement in democracy and when it might undermine, or substitute for, other forms of participa- tion. The authors turn repeatedly to African American political 1 Schwartzberg_i_289.indd 1 12/18/19 3:13 PM 2 Melissa Schwartzberg thought— from Frederick Douglass to Martin Luther King Jr., to contemporary leaders of the Movement for Black Lives—to chal- lenge received understandings of the Civil Rights Movement, to question the communicative potential of protest under conditions of injustice, and to defend uncivil and radical forms of dissent.