Freedom to protest- reflections of an FSU supporter

I’ve struggled with two ideas since Molesworth Street in Wellington was annexed by a group of tent constructing, road-blocking protestors against mandates (and a lot of other things).

The right to protest

The first is a strong view I have on the value of the right to protest. I think free expression, of all rights, is the one that most fundamentally allows the reflection of an individual in society and beyond that best reflects the diffusion of power we want to see in a liberal society where people are valued over the governing bodies (thinking here about the reversal of hierarchical governments that precipitated the moves towards individualised rights - the British empire, the French monarchy, most revolutionary movements and so on).

Protest, as a corollary of expression, is expression at its most political and most valuable.

Protest is also where freedom of expression comes directly into conflict with political power. That’s important on a principled level. Free expression is, at least in part, intended to be a check on Executive power, people can disagree and visibly do with their Government and this is a check on what the Government can do - you must be appealing to people. Further, rights apply to everyone and aren’t meant to be mutable by majority opinion. This is a core aspect, my right to express myself and disagree with the government should not be voted away, minorities matter and are valuable. If a minority of people can make life hard by spending their time objecting, it weighs into the decisions of those who wield power. A minority reserves the right to raise a counterpoint which, in the best case can shift opinion, but in the worst-case allows them a cathartic place to be heard and realise their autonomy. This protest is both a valuable aspect of our social fabric and something that needs to be protected.

Stemming from my prior, I tend to think I put quite a lot of weight on protest being valuable regardless of what the protest is about. I should point out here that I personally don’t think protest is something I would enjoy doing, I tend to disagree with a lot of people who stand outside Parliament generally and certainly disagree with the current lot. But they are captured in a view I have on protest - so where are the limits?

With these protests, the context also matters. I am someone who is triple vaxxed, understands the reasons for vaccine mandates, scans into venues, has a stock of masks, and dutifully follows government advice. But I also recognise the exceptional context where we are being required to act in this way. It is abnormal and an anathema to the culture of rights we have otherwise lived our lives with.

Regardless of whether the context is justifiable (it is), the fact we need to do it heightens the need to value rights of disagreement given there are limited alternate avenues for disagreement to be conveyed. People's rights to disagree are fundamental in a free and democratic society and we are removing many other avenues from the protestors.

The context of the protest also flows into the place it happens. Setting up a protest at the place where the rules you object to come makes sense. Indeed, I struggle to find an example where I think that protesting at Parliament should be limited. If the trade-off is someone exercising a right to my right to enjoy the Parliamentary grounds, I think the former is the higher-order right. This extends out to a view that Parliament is generally a place where protest should have more protections.

A little comment on being responsible

Before looking at limits - a small cul-de-sac. As with most rights, I think that the default position is to defend them and value the realisation of them. Personally, I think that this comes with a responsibility to exercise these rights well and with discipline. If you are going to speak, we need to protect your right to do so, but I think you should have a non-legal responsibility to act with decorum.

A failure to do this doesn’t extinguish your right, but we should be aware that rights only have value for as long as society values them. Rights are fragile - we need to care about them. So I think there is a good argument that the protesters are chipping away at the social fabric that permits a strong rights framework in society, which is bad, but I don’t believe that this by itself creates a clear limit (mainly because it is very subjective).

Limits to protest

My first conclusion is that a lot of behavior associated with protest is probably legitimate until it begins to infringe clearly on other first-order rights people have. My (very) basic recollection of early law study reminded me of the case of Brooker vs Police which I always quite liked at articulating the limitations of protest (in that case compared to disorderly behavior). It’s not a perfect parallel, but I like the articulation of Justice Tipping who steps through a test that I found comparable when assessing my views

Where, as here, the behaviour concerned involves a genuine exercise of the right to freedom of expression, the reasonable member of the public may well be expected to bear a somewhat higher level of anxiety or disturbance than would otherwise be the case...There must, however, come a point at which the manner or some other facet of the exercise of the freedom will create such a level of anxiety or disturbance that the behaviour involved becomes disorderly under s 4(1)(a) and, correspondingly, the limit thereby imposed on the freedom becomes justified.

In that case, the conduct in question was a man holding a sign and signing in a “relatively loud voice”. This was not deemed disorderly enough to override a right to protest, in part, due to the small scale of the protest.

In the case of the current Wellington protest, the scale is much more significant. Whole apartments are blocked, businesses have been unable to trade, and major streets have been blocked including the main bus interchange causing significant transport disruption in the CBD.

The harder edge of the protest has been a little more sinister. Examples of people being harassed (including children) about wearing masks, journalists being harassed for doing their job, nooses being hung around Parliament, people being more violent have also been reported even if this is a minority. This culminates with a hard edge of the protest which seems to be oscillating in and out of acceptable bounds of protest quite dramatically.

This already seems to be a sizeable difference in public disorder - that has manifestly impacted people's lives and seems to have, in a number of instances, impacted peoples ability to engage in basic parts of society and infringes on their first-order rights. People not being able to trade, people having abuse thrown at them for wearing a mask (I’d argue this is just a comparable expression trade-off), police having things thrown at them, and having a group of people monopolise public infrastructure seems to me to create a public disorder event that is a comparable infringement to a significant group of people.

But the context also needs to be addressed - protest is generally important and specifically so in heightened political contexts as we have here. This is why I find it difficult to agree that the source of unreasonableness is the monopolisation of Parliament or the setting up of tents. I understand that this is technically against the law, but I’m not sure it should be.

I’m much more certain that the spillover into the effective annexation of streets is clearly a problem. The fact of doing it and therefore showing disregard for rules that bind society is somewhat intimidating by itself, coupled with difficulty in distinguishing harder edges of protest from the main thrust of it, significant public disruption, and in the context of increasing public health risks, it seems like the spillover outside of Parliament is unreasonable and limits a greater weight of rights than it preserves by allowing it.

So where I’ve arrived at here is thinking the value I’ve gained from the protest is testing my own thinking on a rights framework I’ve given lip service to but haven’t really tested in my own lived experience. It’s made me think more deeply about the boundaries of legitimate protest and where I think the right to protest is enhanced or diminished. In this context, it’s not simple - there are elements that are clearly out of line (even if I object personally to the whole thing) and elements that I previously hadn’t considered but think should be both permitted and protected.