Christopher McCrudden: Democracy, protests, and Covid-19: the challenge of (and for) human rights

Two excellent databases enable us to track the effect of Covid-19 on political protests and demonstrations. Both the Carnegie Endowment for International Peace and the Armed Conflict Location and Event Data Project tell a similar story: that the effect of the virus has been mixed. Some protest movements that were active before the pandemic are now much less in evidence (the yellow vests in France). Other demonstrations continue as before (Lebanon) but sometimes develop innovative methods of getting their message out (Israel). Increasingly, however, we are also seeing the emergence of protests directly related to the virus, and to government actions taken (or not taken) to address it.

Each of these developments has significant implications for how we should view the future of non-violent activism in the ‘new normal’. First, the decline of some protest movements may be the result of sensible decisions by these movements themselves to cut back during the pandemic, but in other cases the reduction in such protests may result from more sinister developments. Unfortunately, this pandemic comes on the back of democratic decline over the past 10 years. Protests grew as democracy shrank. 2019 has sometimes been called ‘the year of the street protest,’ and it seems clear that the Covid-19 crisis has been seen as an excuse by some governments to introduce authoritarian measures restricting embarrassing or threatening political dissent. Authoritarian governments in Hong Kong and Hungary have frequently been seen by commentators as having done just that. How to distinguish between legitimate and illegitimate restrictions on protests will remain highly problematic.

Second, the continuation of demonstrations and protests, particularly those that involve politics on the streets give rise to the significant possibility that they will contribute to spreading the disease itself. How to protest in public, whilst maintaining social distancing is no easy matter, and has required some ingenuity. The practice of Israeli demonstrators maintaining social distancing during protests in Rabin Square in Tel Aviv may or may not be adopted elsewhere. Recent protests arising from the death of George Floyd, whether in the United States or in Britain, do not appear to have maintained social distancing, if the coverage of these events is anything to go by. Whether the R-number is increased as a result remains to be seen.

Alternative methods of protesting that do not rely on mass gatherings may develop, including online protests and, possibly, legal mobilization, but each of these brings with it particular problems. On the one hand, the greater diversity of forms of protests may increase the diversity of those participating, with women and younger people more in evidence. On the other hand, these changes in tactics are likely to lead states to engage in even more monitoring of social media, with obvious implications for privacy. The relationship between states and Internet platforms will, as a result, require rethinking. How far should we empower the state to regulate these platforms in order to protect us from manipulation? And to those who immediately answer ‘bring it on’, we need to be aware that government is not above manipulation itself, as the government’s commissioning of ‘scientific’ advice appears to demonstrate. Unfortunately, there appears to be evidence, patchy so far, of attempts to influence behaviour through non-transparent manipulation, or ‘nudging’. Fortunately, the behavioural psychology advice that governments now appear to be relying on for these purposes is rudimentary. So far.

It is the third development that, perhaps, has the most profound implications for democracy, however, namely the increasing frequency of protests arising directly from governmental responses to the pandemic itself. Protests against the way governments have responded to Covid-19 may, of course, be legitimate. I suspect we have all found ourselves (or members of our families) shouting at the latest idiocy that we see being announced, or the most recent searching question by well-informed journalists being dodged. The Black Lives Matters protests are driven, at least in part, by a justified outrage at the obvious disparity in Covid-19 death rates, with BAME communities apparently much harder hit. In the absence of transparent communication of policy and robust accountability mechanisms, legitimate protests will increase, particularly if (when?) the pandemic returns with even greater virulence.

Demonstrations about the government response to Covid-19 appear to have the potential, however, of combining with earlier movements to create a toxic brand of protesting. There seems to be a risk of the capture or infiltration of such movements by (what I’ll call) populist forces that redirect the anger of the demonstrators against the most vulnerable in the society. Germany and the United States both provide recent evidence of the coming together of disparate ideologies that latch onto Covid-19 protests: anti-immigrant groups, neo-Nazis, gun-advocates, anti-globalization groups, conspiracy theorists, anti-vax activists, 5-G protesters, and the inevitable anti-Semites. 

Such groups, sometimes egged on by irresponsible political leaders, appear to be united by their anti-intellectual, anti-institutional, and anti-scientific biases in ways that may yet prove a significant threat to democracy. The likelihood of these developments being exacerbated by economic depression is, unfortunately, considerable. In this respect at least, the current crisis is not as unprecedented as is often alleged. We can benefit from history, although which period provides useful lessons is a huge question. Unfortunately, aspects of the current crisis raise disturbing parallels with 1930s Europe.

What will be crucial in heading off the more disturbing of these developments is the degree of trust that resides in political, economic and scientific leadership, nationally and internationally. Such trust will only be retained (or restored) if the leaders in these fields exhibit appropriate levels of transparency, accountability, modesty, fairness and competence. Suddenly, we seem to discover that values matter after all. It is hard to escape the conclusion that more democracy is necessary, and with that will come more protests.

We will still be faced, however, with attempting to distinguish between ‘legitimate’ and ‘illegitimate’ protests, and between ‘legitimate’ and ‘illegitimate’ restrictions on protests. On what basis can we do this, and who should be responsible? There are several practical dimensions to this, but I’ll mention only two here. First, the print and broadcasting media have a very difficult line to tread, between reporting these protests and legitimating them. How can the media avoid making misinformation (bleach, anyone?) appear as legitimate as evidence-based policy? There is a particular issue for broadcast media in countries where there is an obligation of ‘neutrality’ imposed by regulators. Sometimes ‘neutrality’ seems to boil down to having a confrontation between the crackpot and the expert, with the broadcaster being a ‘neutral’ moderator – the same problem as in the climate change debate. Should we aim for a more responsible broadcasting ethic that calls out fake news for what it is?

There is a second danger, however, which concerns me particularly. The danger is that ‘human rights’ are seen as supporting, indeed as encompassing, only the wilder claims of the libertarian right. The emphasis on human rights as justifying protests that complain that we can no longer go to the pub or to a football match, will pose a considerable risk for the legitimacy of the human rights project after the pandemic, furthering the skepticism that human rights advocates are losing touch with reality. For me, at least, the image of the British Prime Minister claiming the ‘ancient, inalienable right of free-born people in the United Kingdom to go to the pub’ as the basis for his unease in imposing lock-down earlier, and thus saving more lives, left me wishing that his conversion to rights-discourse had been somewhat more informed, and somewhat less irresponsible.

There is a place for human rights in discussing the appropriate response to the Covid-19 crisis, but it is a nuanced and problematic one, and one that requires a deeper appreciation of the thinking on which human rights are based. The issue of freedom of speech and assembly in these difficult days is both topical and illustrative of the need for this deeper understanding. Why, exactly, are these appropriately regarded as important rights, and what are the appropriate limits to these rights? Restrictions based on manner, place and time are commonly accepted as reasonable; more controversial are restrictions based on the content of the message. Should we criminalize hate speech? Should we ban ‘no-platforming’?  

Traditionally, three answers were offered to why freedom of expression, to use an umbrella term that includes both speech and assembly, should be protected. First, it is considered valuable because it is said to contribute to the truth emerging from the clash of ideas, and truth is intrinsically valuable. Second, freedom of expression is considered valuable because, in a democracy, the citizenry needs the full range of expression available in order to be able to act in a fully-informed way. Third, freedom of expression is important to the speaker as an important vehicle for self-expression.

So far, so good, but a little more thought shows that there are problems. We can see immediately that different forms of expression, taking place in different forums, and at different times are likely to be prioritized depending on which of these justifications is considered to be most important. Indeed, in some contexts, these justifications point in opposite directions. We need to have a serious conversation as to the future of protest in the ‘new normal’ based around what is and is not protected by freedom of expression, and why. Sloganeering will not help; it will simply exacerbate the problem.

In no country that I’m aware of, for example, is freedom of expression, protected for any of the reasons sketched out, regarded as an absolute human right. Nearly every single human right (apart from freedom from torture and the prohibition on slavery) is to be seen in relationship with other rights and values. Seeing issues arising from Covid-19 through a human rights lens should, instead of focusing on one right to the exclusion of others, take in the full range of human rights protections, including the right to life and to health, the right to an adequate standard of living, and the right to work, with the consequence that we locate human rights appropriately, often on both sides of major political disputes. The majority of the United States Supreme Court were clearly right, in my view, to refuse to allow a challenge, based on freedom of religion grounds, to California’s eminently sensible decision to restrict church services based on the need to lower the rate of Covid-19 infection.

Undoubtedly correct, but still troubling. We should not duck the difficult problems that arise from cases such as this. Covid-19 exacerbates an already well-known problem in human rights ideology: how to balance conflicting rights, and how to do so without descending into merely utilitarianism and pragmatism. Whether human rights advocates are able to manage this difficult task may well prove vital in securing its future in the ‘new normal’.

Christopher McCrudden FBA MRIA is Professor of Human Rights and Equality Law, Queen’s University Belfast, and L Bates Lee Global Law Professor, University of Michigan Law School.

This blog was stimulated by a British Academy seminar on ‘Democracy and Protests in Light of Covid’ held on 19 May 2020. I am grateful to Simon Goldhill FBA for comments on an earlier draft.