Franklyn S. Haiman: "Rhetoric of the Streets: Some Legal and Ethical Considerations"

Franklyn S. Haiman: "Rhetoric of the Streets: Some Legal and Ethical Considerations" Readings on the Rhetoric of Social Protest, 2nd ed.

(1967)

"But when one finds those who profess neutrality or friendship toward the goals of the dissenters also expressing doubt about the methods they employ, it is time to attempt a serious assessment of the situation...many objective observers of the contemporary 'rhetoric' of the streets do have misgivings about its propriety and even its legality" (14).

Haiman includes social protest within the bounds of rhetoric by applying Aristotle's view that rhetoric means "all the available means of persuasion."

Haiman notes that the "new" methods move away from picketing and mass rallies toward sit-ins, boycotts, marches in new areas (all white neighborhoods), going limp when being arrested, etc. They seem to be placed in time as new developments on voicing social unrest.

The following are challenges to the then new rhetoric of the streets: massive rallies, marches, sit-ins, going limp while being arrested, picketing specific targets, disrupting the peace, etc.

"The first line of criticism asserts that insofar as the contemporary rhetoric of the streets violates the law it produces a climate of anarchy from which, in the end, no one can gain" (15). This is equated to taking the law into one's own hands. Civil disobedience under this criticism is still not condoned because it circumvents the "legal channels" for grievance.

"A second category of criticism is directed at those aspects of the new rhetoric, admittedly legal and even appropriate under some circumstances, but alleged to violate the proposition that, in an orderly society, there must be prescribed times, places, and manners for protest...they argue that protest is not justified if it constitutes an invasion of the privacy of others" (15). Essentially, this criticism holds that demonstrations which disrupt the quiet of one's private space is unacceptable. It should not inconvenience others.

"The third category of criticism...is the proposition that the new rhetoric exceeds the bounds of rational discourse which teachers of rhetoric value so highly and are dedicated to promote; that the new rhetoric is 'persuasion' by a strategy of power and coercion rather than by reason and democratic decision-making" (16). Leland Griffin termed calls this type of rhetoric "body rhetoric," which denotes the weight of presence and force of weight to exact change. "To such critics the intention of the marchers seems not to be simply to communicate grievances, but to throw the city into such chaos that it will be forced to meet their demands" (16-17). Those who take-up this third criticism also believe the protests are too pathos driven.

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The criticisms raise two questions: Is it legal under the 1st Amendment? If so, is it ethical?

Defense of new street rhetoric:

"one must concede that such activity does have an undermining effect on established authority and tends toward an anarchic social climate...if he breaks the law he should be punished...I would not some important qualifications often overlooked (17).

Practitioners of civil disobedience recognize the unlawfulness of the act, "but they are willing to pay whatever penalties the civil law may exact in order to obey what they regard as a higher law" (religion/conscience). (17-18).

"One can admire the courage and sympathize with the goals and still recognize, as they do, that thye must be punished for their actions" (18).

"Indeed, a riot is not civil disobedience at all, and rioters are usually an entirely different group of people from the kind who engage in conscientious disobedience" (18).

"Can anything be said in defense of Watts and of angry voices in the streets which sometimes seem to be calling for violence?...But should we not be somewhat troubled by the awareness that, despite the destruction to property, despite the loss of lives, despite the backlash of public opinion, these outbreaks have precipitated significant reforms that previously had been notably slow in coming? It would seem that even the 'rhetoric of the riot," mindless and indiscriminate  as it may be, has its positive function in contemporary America...if the channels for peaceful protest and reform become so clogged that they appear to be (and, in fact, may be) inaccessible to some segments of the population, then the Jeffersonian doctrine that 'the tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants' may become more appropriate to the situation than more civilized rules of the game" (18-19).

"The real questions in this area are not questions about the correctness of the principle, but rather about the reasonableness and equity of its applications to particular conflict situations" (19).

"Innocent Bystander Theory"

"Thus it is arguable that on issues such as civil rights and the Vietnam war there is no such thing as an innocent bystander. Every citizen who supports the status quo, either actively or by passive acquiescence, is a legitimate target for the communications of the dissenter" (19).

"Right to Privacy"

"The question, I think, is what price a society is willing to pay to insure that the messages of minority groups are not screened out of the consciences of those to whom they are addressed. For once the principle is invoked that listeners may be granted some immunity from messages they think they would rather not hear, or which cause them annoyance, a Pandora's box of circumstances is opened in which the right of free speech could be effectively nullified" (20).

"Closely related to the right-to-privacy and innocent-bystander arguments is the assertion that the contemporary rhetoric of the streets sometimes creates inconvenience for other persons" (20-21). Haiman goes on to compare the inconvenience caused by other parades, which happen without an innocent bystander argument, as a means of defending the "inconvenience" of protests" (21).

"The category of criticism of contemporary protest movements  which asserts that their rhetoric exceeds the bounds of rational discourse must, finally, be addressed. The first charge here was the the 'body rhetoric' employed is a physically coercive tactic which has little to do with the exercise of freedom of speech" (24).

"The change has been wrought by the hostile audience which, rather than contenting itself to stay at home and ignore the demonstrators, chooses to go out on the streets to confront them. There is nothing inherently coercive about one dissenter, or one hundred, or one thousand, walking peaceably down the street...their activity is endowed with coercive potential only if others go forth to do battle with them, or feel too guilty and fearful to leave them alone" (25).

In Cox vs. Louisiana the Supreme Court ruled that "conduct" and "pure speech" are different and therefore awarded different protections under the First Amendment.

This decision was met with much criticism: Justice John Harlan (1961) concerning his decision to overturn sit-in convictions (body rhetoric) "Such a demonstration in the circumstances...is as much a part of the free trade in ideas...as is verbal expression more commonly thought of as speech. It, like speech, appeals to good sense and to the power of reason as applied through public discussion...just as much as, if not more than, a public oration delivered from a soapbox at a street corner" (25-26).

Concerning "body rhetoric," "let me indicate an important qualification. One would have to be naive to believe that the leaders of contemporary protest groups are unaware of the power potential in their demonstrations (even if that power is conferred upon them by the fearful or hostile audience) or that they are unwilling to exploit such situations to their own advantage...Such tactics are certainly no part of rational discourse, although they may establish the preconditions for it" (26).

"Their only justification, in my view, is that the norms of the democratic process may be inapplicable to the situations in which these strategies are employed" (26). Essentially, he's arguing that when the balances of power are so one-sided, body rhetoric protest movements that shake the common idea of ethical and rational discourse serve as a means to renegotiate the balance of power. He quotes Dean C. Barnlund and his article The Dynamics of Discussion: "When one person or a few people in a group or society possess all the guns, muscles, or money, and the others are relatively weak and helpless, optimum conditions do not exist for discussion, mutual influence, and democracy. Discussion in such circumstances occurs only at the sufferance of the powerful; and generous as these persons may sometimes be, they are not likely voluntary to abdicate their power when vital interests are at stake...The most solid and enduring basis for democracy exists when the participants possess relative equality of power. Discussion is assured only when those desiring discussion--usually those who are dissatisfied with the present state of affairs--have sufficient power to make those in control of the situation listen to them" (26).

"Perhaps the best one can do is to avoid the blithe presumption that the channels of rational communication are open to any and all who wish to make use of them and attempt, instead, a careful assessment of the power structure of the situation. To whatever extent one finds an imbalance of power and a concomitant unwillingness on the part of the holders of power to engage in genuine dialogue, he may be less harsh in his judgment of those who seek to redress the balance through non-rational strategies of persuasion...we will not attain those conditions by closing out eyes to the realities of the world about us and condemning out of the hand the contemporary rhetoric of the streets" (27).




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