Does It Matter Why Others Are Protesting What You Are Protesting?

During the fallout after the racist rally in Charlottesville in 2017, and in particular after Donald Trump's infamous "fine people on both sides" defense of the pro-Trump bigots who marched there, one of the late-night shows (most likely "The Daily Show," but it hardly matters) addressed the question of whether there could possibly be some truly fine people who were there to protest what the bigots were also protesting.  Who might such a fine person be?

The neo-Nazis' excuse for staging the protests was the planned removal of statues of Robert E. Lee and Stonewall Jackson from what was then called Lee Park, as well as the city council's decision to change the name of said public park.  One supposes that a protester could be a Civil War buff who sincerely (but wrongly, in my view) thinks that removing statuary "erases history," or something like that.  Such a person might rightly reject the Lost Cause myth and celebrate the true Civil War heroes who brought an end to chattel slavery in the United States yet still choose to protest the same thing that the racists were protesting.

The late-night host in question posed the issue this way (which I am recalling from memory, not a transcript): If you're marching in a rally and you look around you and see people with swastikas chanting, "Jews will not replace us!" and you don't immediately leave, then maybe you're not a fine person at all.  That seemed right, but is it?  Or is it an example of an easy call (don't hang out with Nazis) that obscures a difficult call (deciding when some likelihood of guilt by association makes self-censorship the better decision)?

I raise this question today because the protests in the US and elsewhere against the Netanyahu government's ongoing response to the October 7 attacks by Hamas have become a flashpoint, and the growing protests are seeing a mixture of peaceful speech alongside some truly troubling instances of protesters engaging in intimidation or worse.  Does that change anything for the peaceful protesters?  Does even peaceful speech that one finds to be repugnant change the calculus?

In his Dorf on Law and Verdict columns yesterday, Professor Dorf discussed the recent crackdown by the Columbia University administration on protesters and argued for a nuanced approach to campus protests.  In particular, he suggested that Title VI's requirement that universities "ensure that students are not subject to a 'hostile environment' on the basis of protected characteristics, which includes protecting students against antisemitism," does not justify what Columbia's president did, because the protests were being held in what amounted to a public space: "Perhaps most salient to the latest controversy at Columbia, some spaces on a college campus—visualize a central quad—are very similar to public parks, which First Amendment case law has long treated as quintessential public fora for speech."

I do not spend time on Twitter (and never have), but I became aware of a tweet responding to the Dorf columns, in which a legal scholar from Australia posted a video showing some of the Columbia protesters policing their encampment in ways that are clearly not protected speech because they claim a right to exclude others.  Moreover, they are apparently antisemitic in that they identified an intruder as a "Zionist" on the ground that the student happened to be wearing a Jewish star necklace.  As the tweet put it: "Utterly chilling. How can this be protected speech?"  The short answer is that it is not, because it is not in fact speech and violates the very reason that Professor Dorf offered for treating a quad like a public forum -- equal access to all who wish to speak and protest.

My question, however, is not ultimately driven by those particular facts (some of which would surely be contested).  Let us instead imagine a situation in which some people wish to protest peacefully based on sincerely held humane commitments but learn suddenly and without warning that many people around them are there for an entirely different reason?  Is there a duty to withdraw?  Even without such a duty, is there a prudential reason to do so?  What if the politicians and commentators who would accuse everyone in that crowd of being motivated by indefensible malice are themselves bad actors who would use the existence of the indefensible actors as a pretext to attack not bad acts but the political views of the peaceful protesters?

The question of mixed motives is, of course, ubiquitous in any situation involving groups of people.  Not everyone at, say, the Democratic National Convention this summer will agree with each other on everything (including, notably, the US's response to the situation in Gaza).  Any time there is a coalition, there will be people gathered under the "big tent" who disagree on many things, perhaps vehemently.

Indeed, one of the running jokes about the Democrats and left-leaning people in general is that they tend to be all over the place.  A classic "Saturday Night Live" sketch showed a protest in which the speaker was continually interrupted by people who were only vaguely aware that they were there to protest against the imminent US invasion of Iraq.  Calls for legalizing hemp, gay rights, saving the whales, and everything else rise up from the crowd.  At one point, after a heckler yells about saving unborn children, the speaker says, "Could the pro-lifers please stick to the program?"  It is hilarious in part because it is so spot-on.

But that random pro-life comment is in fact an example of the larger issue, which is about dissonance within a group of protesters.  The other examples in that sketch were all either lefty stuff or apolitical, and most of the people in attendance were probably not bothered by them substantively.  But it would be surprising if an anti-abortion protester were anything but an outlier at a US antiwar rally -- not because the views are inherently irreconcilable but because of what has become the standard menu of red and blue worldviews.  Similarly, in a column a few years ago I recounted an incident in which the speaker at a pro-choice rally veered off script and began attacking labor unions, leaving the crowd confused and the other people on the dais blindsided and angry.

I have never been one to attend protests, not because I think they are unimportant (in fact, they can be world-changing) but because I try to make contributions to change in other ways.  But what if I were to attend one and found that I was surrounded by people saying things that I found wrong, or even abhorrent?  What if, for example, I wanted to protest the Netanyahu government's actions because they are harming innocents but the people around me said that the October 7th attacks were justified in the first place (perhaps because "nobody is innocent")?  Even if those hypothetical co-protesters were engaged only in pure speech and expressing views that would be well within their free speech rights, what should someone like me do?

In that particular situation, I think I would do what that late-night comedian said very fine people should do: disassociate myself from the people around me.  Right away.  But is that the right call --especially because doing so amounts to ceding the public agenda, allowing the conversation to be only between Netanyahu's defenders and Hamas's defenders?  Presumably, it would be possible to organize a different protest at a different place and time, but what if that were also to become dominated by people with whom I do not wish to associate myself?

The protests in 2020 after George Floyd's murder offered a different angle on this, because the people who were acting opportunistically were those who turned (or at least tried to turn) peaceful protests into riots.  It turned out that the conservative echo chamber's focus on arrests of protesters elided the key fact that almost all of the arrests of protesters were for offenses like spraying graffiti on public buildings, whereas the actual violence was being carried out by right-wing paramilitary groups as well as lone actors (like Kyle Rittenhouse, who was soon lionized on the right).  And even those who were guilty of petty crimes were mostly not social justice warriors so much as nihilists happily looking for an excuse to act out.

All of which sharpens the question about what to do when one is surrounded by people with whom we profoundly disagree, when we know that the guilt-by-association crowd is ready to pounce.  The Republicans in the US House who intimidated Columbia's administrators into overreacting to on-campus protests are surely salivating at the news showing that some of the protesters are in fact easy to criticize.  Even though the Columbia protesters have claimed that many of those bad actors are not even Columbia students, the "outside agitators" defense is very difficult to prove and generally convinces no one.

The choices then come down to: (1) continue to protest alongside (or at least in the same general space as) people whose only point of agreement is to the bottom line, (2) try to set up a protest but somehow make sure that the people in attendance are there for "the right reasons" (good luck with that, both logistically and legally), or (3) stop protesting in response to what amounts to a variation on the heckler's veto.  In (1) and (3), one's ideological opponents will have a field day, in the former case saying that all of the protesters believe the same bad things, while in the latter case noting that the protests have gotten smaller and that all of the people attending them in fact do believe indefensible things.

Most of the time, I respond to attacks on "the left" -- especially claims of hyper-leftiness in academia -- by rolling my eyes.  That is not because I claim that there are zero examples of people to my left who are off the deep end but because they have always struck me as a minor irritant and not at all representative of the big picture in US universities.  Professor Dorf summarized the point well in a column several months ago:

Charges of woke over-sensitivity have a War-on-Christmas character: they tend to recycle the same handful of incidents in which a right-wing provocateur comes to campus and intentionally elicits an intemperate response from students and occasionally from faculty and staff. Some such incidents are indeed troubling, but they do not reflect the overall climate on campus.

What happens when the numbers of troubling incidents rise to become nontrivial, and when despicable views among one's longstanding allies bubble to the surface?  When it is no longer accurate to say that such people are a tiny fringe, life becomes much more complicated.  We can readily say that actions that are not protected by free speech ideals can be handled easily, but even when it is a matter of pure speech, it is at least uncomfortable to seem to be agreeing publicly with people whose views we reject.  As always, there is no formula and no bright-line rule, which only makes this conundrum that much more important to confront consciously and honestly on a case-by-case basis.