Jurisprudence

What History Tells Us About Protest in an Era of Vigilante Violence

A group of people hold up signs. A Black woman at the front speaks into a megaphone.
Black Lives Matter protesters in Louisville, Kentucky, after the recent acquittal of Kyle Rittenhouse. Jon Cherry/Getty Images

Hours after Kyle Rittenhouse’s acquittal, Rep. Eric Swalwell, a Democrat from California, jumped into the conversation about the risks protesters now face in light of the verdict, tweeting: “We have more peaceful marching to do. To where? Every ballot box across our land. Lace up.”

While protests on the Left have remained predominantly peaceful over the past five years, the dangers to protesters have spread silently. In August 2017, the risks were on full display when a white supremacist drove a car into counter protesters, killing Heather Heyer, at the Unite the Right rally in Virginia. This saga came to a close yesterday when a jury in Charlottesville, VA ruled, in the civil case against the right-wing groups that organized the rally, that those injured during the attack were entitled to more than $26 million in damages. 

Advertisement
Advertisement
Advertisement
Advertisement

In recent months, violence against protesters has been formally sanctioned through state governments. Dozens of states have passed bills limiting the rights of protesters and empowering violence against them. The bills increase penalties for blocking traffic and damaging property. They expand the definition of a riot to include just three or more people. With judicial cover from the Rittenhouse verdict and legal protections from state legislatures, deadly violence against protesters (peaceful and confrontational) is virtually assured.

Understandably, people are wary of exercising their First Amendment right to assemble in light of the rising threat of violence and limited repercussions to those who attack protesters. At the same time, as Rep. Swalwell points out, the need to publicly resist and to show up to the ballot box, is as great as ever. Still, many wonder what is the value of public demonstration when Congress is so woefully gridlocked and many Republican-led state legislatures have shown hostility towards demonstrators.

Advertisement
Advertisement

These are not easy issues to resolve. But a closer look at past protests may provide some insights.

By connecting peaceful protest to elections, Swalwell was echoing the message of the anti-Trump Resistance that mobilized millions to march in protest against the Trump Administration and its policies. Groups organizing the large-scale protests that were the hallmark of the Trump era encouraged activists to take advantage of the institutional levers they had access to and channel their outrage into electoral politics. Millions of people have repeatedly marched in the streets to raise awareness around a range of progressive issues—including gun control and political gerrymandering. This period of heightened engagement in political protest in America is notable for the degree to which these protests have stayed peaceful.

Advertisement
Advertisement

These peaceful protests worked. The blue wave that swept through the House of Representatives in 2018 and the election of Joe Biden are thanks, in part, to the work of the activists who mobilized across the country and around these electoral campaigns. Although this strategy has resulted in incremental political success for the Democrats, the limitations of this theory of social change are beginning to show.

Advertisement
Advertisement

Responses to Swalwell’s tweet were swift with many highlighting the overt risk that peaceful protesters are likely to face in the wake of the Rittenhouse trial. Other called Swalwell and other representatives out for failing to pass meaningful legislation to protect voting and other civil rights.

Swalwell answered these critiques by invoking the spirit of late civil rights leader, Congressman John Lewis, and the risk he and other activists took during the civil rights movement when they struggled to earn the vote for Black Americans: “Did John Lewis ask about guarantees for his safety? No, he marched. And we are better because he and millions did. They knew what was at stake.”

Advertisement
Advertisement

But this moment is quite different from 1960s America, and Rep. Swalwell conflates different types of protest.

Demonstrations during the civil rights period aimed to access institutional power for Black Americans who were disempowered and struggling to gain the vote, engage in the political system, and resist Jim Crow. Civil rights protests employed increasingly disruptive tactics, including civil disobedience and confrontation. Much of the activism during this period was explicitly intended to provoke violence and repression that would expose the injustice of the state and shift public opinion in favor of political action. These tactics were intentional and employed by people who felt they had no other choice.

Advertisement
Advertisement

In contrast to the protests during the Civil Rights Era and earlier waves of the Black Lives Matter Movement, White allies joined the struggle for racial justice in high numbers in summer 2020. It was at such a protest in Kenosha, WI that Rittenhouse killed two unarmed protesters and shot another one in the arm — all of whom are white.

Advertisement

Protest tactics used by people with very few political options and little left to lose are confrontational by design, employing insurgent tactics that get attention and arouse discomfort. This is a strategy. The change needed is urgent and the activists participating have made a conscious decision to risk arrest and bodily harm for the cause.

Advertisement

Juxtapose those tactics with peaceful protests that aim to send a political message through media coverage to representatives. This type of low-risk activism provides participants with a sense of collective identity that will motivate them to work for political change through the system. It is very different. The recent string of direct action stunts by well-known activists and religious leaders that involved participants refusing to move from a location—like in front of the White House or the steps of the U.S. Capitol—and getting arrested also fall in this category. These performative acts of civil disobedience expose the activists to relatively little personal risk and are choreographed specifically to gain political and media attention for a cause.

Advertisement

Although both types of protest take place in the streets, one works within the system and the other creates pressure from outside of it— pressure that threatens the system’s very existence.

With the current risks to protesters, what is the future of protest in America? History tells us there are two options.

The first option is to double down on the work of the Resistance and follow the original advice of Rep. Swalwell. If enough activists mobilize to work for electoral change, it would matter more than ever before. With more Democrats in office, they might finally deliver the democratic reforms that are so badly needed. Given recent trends and the fact that the party in the White House rarely retains the majority in the House of Representatives, though, it is hard to imagine that the Democrats could win enough seats in the midterm elections to secure the necessary political power (especially as Republicans have been quickly gerrymandering districts across the country).

The other more dangerous option is to get back in the streets and follow the example of the Civil Rights Movement and fight for our civil rights that are very much at risk. Those rights that were hard won by the sweat, tears, and blood of activists who risked violence and death to stand up for what they believed. With the Rittenhouse verdict empowering vigilantes and states efforts to repress civic participation, the risks to protesters are clear. But there is growing evidence that only insurgent tactics can fulfill the promise of America.

Advertisement