Among the most important innovations brought about by America’s experiment with a democratic republic, the country’s bill of rights established freedoms for citizens that many people throughout the world are still fighting for. The country’s history can in some ways be understood as the story of a simmering conflict between ordinary working people and powerful interests, from corporations to homegrown demagogues, with these forces trying to redefine or limit these rights, especially during times of war.
Since the shocking events of September 11th 2001, cynical American politicians and their helpers in law enforcement and the intelligence community found new workarounds to some of these long standing protections, a process that’s been imitated and even expanded upon by allies like the U.K., using the excuse of a seemingly never ending ‘war on terrorism’.
A frightening example of how this has been done is offered by the evisceration of protections from unreasonable searches and seizures guaranteed to Americans by the 4th Amendment to the country’s constitution. While the need for authorities to show probable cause and have a judge sign off on a warrant remain in place for searches of private residences, as Edward Snowden brought forcefully to many people’s attention, the emergence of new communications technologies and the internet have created novel ways to collect information about citizens unavailable to even the most repressive governments in the past.
As the exiled former Booz Allen Hamilton contractor once explained to NBC, “All of your private records. All of your private communications, all of your transactions, all of your associations, who you talk to, who you love, what you buy, what you read, all of these things can be seized and then held by the government and then searched later for any reason, hardly without any justification, without any reason, without any real oversight, without any real accountability for those who do wrong.”
Taking things even further, it’s been reported that some in government have found a new way of getting around 4th amendment protections: by paying companies and brokers for private information they wouldn’t be able to access on their own.
Bob Goodlatte, a former chairman of the U.S. House’s Judiciary Committee and former Senator Mark Udall talked about this issue in a recent Chicago Tribune opinion piece, writing, “Some of these brokers also sell your personal information to the government, which amounts to a treasure trove of personal information for intelligence agencies and law enforcement to scan without having to bother with the pesky Fourth Amendment requirement for a probable cause warrant.”
Other limitations on the 4th Amendment were already being established prior to this century, like excluding motor vehicles from rules around probable cause, due in the main to a car’s mobility. This has provided a fiscal bonanza for local law enforcement in many jurisdictions, who use loose rules around civil asset forfeiture to seize cash and other items deemed suspicious by officers during traffic stops.
This has led to a large number of cases of people losing their personal property. As we might expect, this more often affects visible minorities (as well as those with out of state plates).
Unfortunately, in terms of 4th Amendment protections and similar guarantees in the U.K. and other English speaking countries like Canada, the left has mostly ignored this kind of government overreach, leaving their defence to the libertarian right, whose arguments are too often derived from an unhealthy devotion to selfish individualism rather than the public good.
It increasingly appears that progressives are also willing to cede ground to the same centrist and right wing forces trying to limit long established freedoms in terms of the 1st amendment and related protections in other countries by allowing an emboldened ‘populist’ right to own the idea of ‘free speech’.
Almost every day there is a new story about so-called ‘cancel culture’ emanating from rightwing media outlets like Fox News. These stories are usually related to de-platforming on privately owned networks like Twitter, who have their own terms of service. An easy solution to this problem would be to make these social media companies public utilities.
While most basic speech protections remain intact in the United States and its allies, or in many cases have been outsourced to the private sector, it’s the right to free assembly and the right to call on government for the redress of grievances in the form of protest that seems most at risk, especially demonstrations that are unpopular with authorities like the Black Lives Matter rallies of last summer.
The most egregious example of this at this time in the English speaking world is a mammoth bill that will restrict the right to protest in Britain and Wales, the Police, Crime, Sentencing and Courts Bill, which is being pushed through the U.K. parliament by Boris Johnson’s Conservative government.
Some of its provisions include allowing authorities to decide on when protests can begin and end, giving them the power to impose fines over noise, and creating stricter rules around “public nuisances” that will criminalize occupations and other forms of civil disobedience.
The bill also allows for prison sentences of up to 10 years if ‘memorials’ like one dedicated to slave trader Edward Colston that was thrown by activists into Bristol Harbor last summer are damaged during such actions. It also redefines what a ‘protest’ is, allowing police to crack down on ‘demonstrations’ involving just one person.
The ban on encampments is seen as reasonable in most press coverage of the bill, which ignores the transformative power that bringing people from different backgrounds together to occupy public spaces can have. As someone who had a kind of political awakening provoked by the Occupy movement, I can honestly say that the difference between it, Standing Rock and other such actions as opposed to marches is the ability to really connect with others in these kinds of spaces.
In terms of Occupy alone, American progressives can thank the movement, dismissed at the time for not issuing a set of concrete demands, for Bernie Sanders’ two primary campaigns and the rise of progressive politics at all levels of government in the United States.
In the U.S. and Canada, in part due to more centrist politicians now in charge, restrictions on protest are happening at the state and provincial level rather than federally, but are at times more limiting of these freedoms than what the Johnson government has proposed in the U.K.
Across the U.S.’ northern border in Canada, we have seen attacks on freedom of assembly, guaranteed along with freedom of expression and association by the country’s Charter of Rights and Freedoms, mainly in aid of corporate interests like those that want to build pipelines or extract minerals from indigenous lands.
This has also led to attacks on the rights of workers to organize.
Last year police in the city of Regina, Saskatchewan ignored the rights of unionized workers at the Co-Op Refinery Complex to picket, with authorities arresting 14 people, including labor leader and Unifor President Jerry Dias for disrupting their business.
In the United States, Republican legislators at the state level seem intent on not just criminalizing protest but making it risky for those who might participate in demonstrations and rallies they don’t approve of. According to a tracker created by the International Center for Not for Profit Law, 18 states have passed 32 laws restricting protests, including redefining the meanings of incitement and rioting to make it easier to arrest activists.
Most worrying in terms of public safety are laws recently enacted in Florida and Oklahoma that, among other things, give immunity to those who use their motor vehicles to run over protesters blocking public roads. As many commentators have noted, such laws might have made the killing of activist Heather Heyer in Charlottesville by a white supremacist during the ‘Unite the Right’ rallies in Charlottesville, Virginia, legal.
As much if not more than at the ballot box, protest has been a tool that the left has used to force government action throughout the English speaking world throughout the modern era by bringing urgent issues to the attention of the wider public. The loss of these rights could set back progress on a whole host of issues for decades. In terms of the climate emergency alone, this could be a blow with devastating consequences far beyond politics.