Up Close in Paris: A Guest Post

The United States is a Republic in Peril

Exactly three years ago Steve Wolfram sent me a guest post comment that I headlined with the same words I use today. He wrote that Trump had hijacked the GOP and it was flouting democratic norms. The U.S. and France both established our democracies in the same decades of Enlightenment enthusiasm. Our democracies have been parallel, but different. He sees both.

He writes again, this time with an opinion on a problem in today's headlines: the student encampment movement on US campuses in a comparative analysis informed by how the French deal with public demonstrations. Born and raised in Texas, Steve is a college classmate. After law school at Harvard, he worked as a corporate attorney in private practice  in New York, London and then Paris. Before retiring in 2017 he worked as General Counsel for M&A at EDF, the French electric generator. Father of five children and grandfather of nine grands, Steve has lived in Paris since 1991. 

Guest Post by Steve Wolfram

The Limits of the Righteous Cause – A View from Paris on the Encampment Movement on American Campuses

"‘You must leave campus immediately’: MIT suspends protesters as encampment tensions escalate"

This Boston Globe  headline is one of many reminders that, to my consternation and surprise, we are still working through a crisis of confusion in American thinking about the scope of the rights to freedom of speech and to peaceable assembly in dealing with the campus encampment movement.*

It is not the substance of the pro-Palestinian, anti-Zionist message of the protestors that I find most disturbing or surprising. Or even their disregard of the political counter-productivity of playing right into the electoral strategy of Trump, under whom the Palestinian cause would again count for little or naught.

On the contrary, I find the horror of college students (among others) at the destruction and loss of life in Gaza to be an entirely understandable human reaction to the death of innocents, particularly children, in the brutal Israeli response to the Hamas massacre of October 7. And, beyond Gaza, I believe that, as with the protest movements of our youth, today’s protests reflect a legitimate underlying anger with elders for the state of the world that they are leaving to their children and grandchildren, who face decades into the future of dark existential challenges with climate change, environmental catastrophe, mass migration, and economic inequality.

Rather, what is most concerning is the jarring discovery of a school of thought emerging not just among students but also among professors and administrators that the degree of freedom of expression and assembly is not fixed, but should be determined by the righteousness of the cause in question. Because our cause is righteous, the logic seems to go, the more liberty and latitude we deserve in our freedom of expression and assembly in support thereof, regardless even of the rights of others.

Beyond the plethora of tent encampments, the consequences of the flexibility in this “liberty for me, but not for thee” application of First Amendment principles are grave. I have no doubt, for instance, that the miscreants of January 6 fervently believed in the righteousness of their cause. And to them, this belief sufficed to justify their actions. In other words, that the end justifies the means. Such has been the mentality and rationale of Mussolini, Lenin, Stalin , Hitler and all other authoritarians. And of Putin today in attacking Ukraine in blatant violation of the UN Charter. And of Hamas in justifying October 7 and of those seeking to excuse October 7 or, in the parlance, to “contextualize” the Hamas attack on the innocents. 

The heart of the problem is that, if each group is permitted to act solely on the basis of its own judgement of what is righteous, we no longer live under the rule of law that is the ultimate safeguard of freedom and equality.

As one who believes that we have benefited greatly by living under a Constitution firmly grounded in Enlightenment principles, I have been shocked by the negative blowback even among educated peers to the affirmation by Harvard Professors Steven Pinker and Jeffrey Flier -- with reference to the Harvard encampment movement-- that, while in a rules-based democracy, freedoms of speech and assembly must absolutely be protected regardless of substance or virulence, these freedoms  are not without reasonable limits as to time and place designed to protect public safety and the ability of the university to fulfill its function as a forum for learning and free exchange of ideas. For ultimately this blowback constitutes a rejection of the fundamental definition of liberty ---echoed by Pinker and Flier --  spelled out in the Declaration of the Rights of Man of 1789 (Article 4): 

“Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights.”

In contemplating the ideological confusion in the United States resulting from the taking root of the “my cause is righteous” school, I am struck by the contrast with the relative success and intellectual clarity that France has achieved in dealing with the inherent tension between liberty of expression and assembly and the interest in public order that have allowed freedom of assembly and speech in a country where demonstrations can be considered not just a collective national sport, but a vital catalyst to vital political engagement.

When I first became a French resident 35 years ago, I was impressed with two phenomena: first, the multitude and variety of demonstrations -- manifestations or "manifs" for short; and, secondly, the invariable presence of riot police regardless of the size or cause at each and every manif.

In my neighborhood -- home to a number of ministries and the National Assembly -- I been treated to a front- row seat to manifs several times a week. The causes are immensely diverse, ranging from those related to the vital issues of the day -- both foreign and domestic – to specialized causes of limited general interest. (My personal favorite in this latter category was a small but enormously enthusiastic march I encountered one morning in support of the protection of wolves in the Pyrenees). I would indeed be hard- pressed to name a cause -- with the sole exception of a march in support of the Donald -- that has not been represented in the streets.

As to the ubiquitous police presence, for a long time I thought of it as solely an overbearing, even tyrannical menace that would be unusual in the U.S. for most demonstrations. As my experience deepened, however, I began to view police presence against the background of France’s long history of violent urban demonstrations, starting in earnest with the Revolution and continuing throughout the 19th century and onto May 1968 and beyond. Given this violent past, I now have come to view the demonstrators, on one side, and the riot police, on the other, as a neatly symmetrical embodiment of the duality of the resolution of the tension between the principles of  liberty and public safety and order, both rooted in the Rights of Man.

With the number and variety of manifs, I find it remarkable that the vast majority -- loud and rambunctious as they may be -- occur without material violence. The gilets jaunes (yellow jacket) marches every Saturday in late-2018-early-2019 were undeniably an exception, but one that I would maintain proves the general rule of orderly protest that serves not only as a healthy and effective outlet for political and ideological expression but also as an important  stimulus to political engagement  in a fundamentally democratic society steeped in constant confrontational, but peaceful political dialogue of a maturity and vigor that I fervently wish existed in our contemporary American culture. 

  
Our Bill of Rights was proposed for ratification in September 1789 in parallel with the promulgation in France of the Declaration of the Rights of Man the same year. With their common source in the ideals of the Enlightenment, there are of course many similarities. But from an American perspective, it is notable that freedom of speech and assembly in France is somewhat more limited than under the First Amendment, as broadly construed in  American jurisprudence. While freedom of expression is explicitly recognized in the Rights of Man, freedom of assembly is only implicit; and even freedom of expression is subject to the condition stated in Article 10 that “the manifestation of such opinions does not interfere with the established Law and Order.” Public "hate speech", for example, is illegal in France, with statutory prohibitions on incitement of racial violence and on Holocaust denial. All demonstrations require a permit from the authorities approving the route to be taken and measures to ensure orderly conduct, with the authorities retaining discretion to refuse such permits in the name of public safety, as recently occurred to prohibit at least one pro-Palestinian march in the aftermath of October 7. And perhaps most significantly, our First Amendment protections of freedom of speech and assembly are  limited to protection from infringement by governmental action, thus still permitting -- for example – various forms of “hate speech” that would be illegal in France.

Notwithstanding (or perhaps in some ways because of) these well-understood restrictions, the French enthusiasm for les manifestations remains alive and well and taken as a sacred right by all political classes.  Yet another French paradox? 

Granted, it has taken France over 200 years and much bloodshed to arrive at a workable and clear balance between liberty of expression and assembly and public order. And it still a synthesis that remains subject to occasional challenge, as illustrated by the gilets jaunes and the recent occupation by pro-Palestinian demonstrators of Science Po -- the elite private, largely tuition-supported college-level institution that draws heavily on relatively privileged students imbued -- like  their American counterparts -- with the righteousness of their cause.

But overall the relative clarity of thought implicit in the French experience should inspire hope that the ideological confusion in the U.S. in dealing with the encampment movement will similarly dissipate. So, while I have no tolerance for the “righteous cause” school, I am also mindful of the need for patience and persistence in order for the sweet reason of the Enlightenment ultimately to prevail.

 

 

Footnote:

 *As the First Amendment only protects freedom of speech and assembly from infringement by governmental  action, these First Amendment principles are enforced on private college campuses only insofar as they are incorporated into college codes of conduct. 

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