The freedom and ethics of protest in a time of pandemic

The Andrews government in Victoria has come under criticism across a number of online sites and news outlets for the significant arrests at anti-lockdown protests, the extensive police presence at dissident gatherings, and the use of search warrants to curtail the activities of protest organisers and persistent agitators.

Some of the anxiety driving recent protests in Melbourne and Ballarat relates to reasonable personal and community concerns about the impact of sustained lockdown on work, business and social life and protest seems a rational means to raise public concerns about the politics of viral transmission reduction measures, and police powers during the COVID-19 State of Emergency.

Other drivers of protest, however, have been described by Assistant Police Commissioner Luke Cornelius as circulating "batshit crazy" conspiracy theories by a "tinfoil hat-wearing brigade". They rely on scientifically inaccurate and factually incorrect ideas that COVID-19 is caused by 5G mobile networking or that the pandemic is a conspiratorial lie planned by Bill Gates and other liberal elites as part of some kind of world takeover. Others, drawing on 'sovereign citizen' discourse, are based on the false premise statutory law has no bearing on individuals. The protests themselves have become an amalgam attracting a range of far-right, anti-establishment, populist and conspiratorial views from among the disenfranchised.

Recent weeks have seen a police crackdown on individuals using social media to organise, incite or encourage protests, including police raids on the home of one woman in Ballarat and one prominent anti-government agitator in Melbourne.

While it might be right to prevent protest gatherings for the risks they presently create, it's important to ask if such police crackdowns and an anti-protest stance are an unnecessary curtailment of free speech and cultural expectations about freedom to assemble, given the long-recognised history of protest marches, vigils, pickets, direction action and rallies in promoting public discourse on important issues in Australia.

Some of the criticism of the arrests of those organising on social media, including that coming from overseas media and the Human Rights Watch, have rightly opened questions about free speech and freedom to gather that demand we think this through by shifting the focus from rights to ethics.

The ethics of the Right to Protest

Given the historical value of protest, should we support an idea of 'freedom' to protest per se, whether on behalf of issues of social justice or those with less social and more selfish individual demands at the core?

Politics and partisan-aligned distinctions have not, of course, been the reason for a crackdown of anti-lockdown protests under Stage-4 containment while others, such as the Black Lives Matter protest in June, was not as harried by government and police. Rather, timing and the risk to the community more broadly are the key factors making the anti-lockdown protests both illegal and unethical while the earlier Black Lives Matter protest on 6 June (of which there is no evidence it contributed to any viral transmission) was allowable.

It is helpful to think through what might be 'ethical timing' and 'ethical conditions' for a protest.

My most direct experience of protest culture in the 1990s in Western Australia, Queensland and Victoria occurred long before a pandemic and in conditions designed to protect life. Non-violent direct action events, rallies and marches among protests in the 1990s and early 2000s were about promoting liveable lives, equality and social harmony, whether they were creating awareness of the ethical problems of, for example, One Nation's racism (during Pauline Hanson's first iteration as a politician), fighting for social and health equalities for gender- and sexually-diverse minorities, participating in the 'People for Cities' movement to prevent the excesses of gentrification in inner-city Perth and its impact on the inner-urban poor and homeless or the S11 anti-corporate and anti-globalisation protests during the 2000 World Economic Forum meeting in Melbourne.

What marked socially-progressive protest culture was not only what the protests stood for, but the practice of protest: direct action public events were marshalled by organisers to ensure no harm would come to any person-whether that was protesters, bystanders, counter-protest agitators, the police, or others. Rehearsals of marshalling were often conducted prior to the day.