Edited with an introduction by Jeffrey R. Di Leo and Uppinder Mehan

Capital at the Brink: Overcoming the Destructive Legacies of Neoliberalism

    I. Race, Violence, and Politics I. Race, Violence, and Politics > 1. Neoliberalism and Violent Appearances

    1. Neoliberalism and Violent Appearances

    Forty years ago, civil rights activists who marched to protest racial segregation and to demonstrate in favor of the right to vote were met by police and mob violence. Acts of violence by police officers shocked the nation’s conscience, creating pressure for stronger enforcement of not only the Constitution’s Fourteenth and Fifteenth Amendments, but of the First Amendment as well. More recently, demonstrations at events such as the World Trade Organization (WTO) Meetings hosted by Seattle in 1999, the anti-war protests in New York City in 2003, the Republican National Convention (RNC) in 2004, demonstrations at the 2009 G-20 meetings in Pittsburgh, and the Occupy! movement, have been met by intimidating and torturous treatment by police. There have been internal reviews of police practices, reviews of police practices by civilian review boards, reports issued by civil liberties organizations, police departments have been sued, and there have been monetary settlements. Yet intimidating and violent policing of peaceful demonstrators and innocent bystanders continues to occur (and videos of these incidents circulate widely on YouTube).

    This chapter argues that with contemporary society’s reflexive understanding of infinite communicative possibilities and the communicative equivalence of all opinion, evidence of institutional efforts to prevent people from exercising their rights of speech and assembly simply adds one more frame to a universe of infinite communicative possibility. The communicative equivalence of all opinion indicates the loss of a metanarrative of commitment to improving the material recognition of human dignity or democratic strength. This “decline of symbolic efficiency,” to use Slavoj Žižek’s terminology, indicates the weakened hold upon us of the horizon to which non-violent civil disobedience must be oriented. [1] It also indicates a weakened sense that police brutality is wrong, as it no longer shocks the public’s conscience. It merely appears. Some are not shocked by its appearance, responding with a cynical, bemused, or slightly bored, “whatever.” Others enjoy it.

    Modernity and Subjectivity

    As feudalism ended and modern nation states began to displace feudalism, a number of transformations occurred. In addition to the emergence of a conception of the public, and a sensibility of “society,” there was a transformation in subjectivity. The social theorist Norbert Elias describes this joint process of social transformation and subjective transformation in The Civilizing Process. With the end of the high status of knights, as knights were brought in from the outside, they had to learn new forms of self-control. Seated at a general table before the eyes of many, they were reduced in stature from the hierarchies of honor and battlefield accomplishments to simple equality vis à vis each other, and non-knights (such as the emerging bourgeoisie). All were equal before the watchful eyes of the king at the table. This contrasts with aristocratic society. Aristocrats feel no shame before the eyes of their servants because servants are unequal to them—the latter do not register before the former as worthy of the kind of concern that would result in a sense of shame. According to Elias, the change in subjectivity (emerging consciousness of how one appears before the eyes of others and engaging in forms of self-discipline as one internalizes the gaze of “everyone”) corresponds to a deeper social transformation: the creation of the modern state and modern society.

    Elias explores the transformation in subjectivity through manners manuals published in the Middle Ages and early modern era. He describes a conversation between the poet Delille and Abbé Cosson, a Professor of Belles Lettres at the Collège Mazarin, in which Abbé Cosson related his recent dinner with some court people at Versailles. Delille asserts to Abbé Cosson that he undoubtedly “perpetrated a hundred incongruities,” which perturbed Abbé Cosson greatly, leading Abbé Cosson to insist that he “did everything in the same way as everyone else.” Delille suspects otherwise, and so asks him what he did with his napkin, how he ate his soup, how he ate his bread, and so forth. In each response, Abbé Cosson begins by stating that he “did the same as everyone else,” but Delille lets him know that in fact he did not, though he failed to be self-conscious about his shortcomings. No one fixes his serviette into a buttonhole, one keeps it on his knees. No one uses a fork to eat soup. One breaks bread, one does not cut it into little pieces with a knife. Finally, how did Abbé Cosson drink his coffee at the conclusion of the meal? “Like everyone, to be sure. It was boiling hot, so I poured it little by little from my cup into my saucer,” he replies. “Well,” says Delille, “you certainly did not drink it like everyone else. Everyone drinks coffee from the cup, never from the saucer….” [2]

    Delille’s questions for Abbé Cosson, and Abbé Cosson’s responses, pivot around what “everyone” does—what is the norm for using a napkin? For eating one’s soup? For eating one’s bread or drinking one’s coffee? Moreover, Delille helps Abbé Cosson to see himself through the eyes of “everyone,” encouraging him to regulate his behavior in front of others in accordance with the norms of what “everyone” does and what everyone expects others to do. Delille is facilitating Abbé Cosson’s internalization of the gaze of “everyone” when he is in public. In sum, with the transformation from feudalism to modern society, with the emergence of “public” and “private” spaces, there is a corresponding transformation of subjectivity as subjects come to internalize the normative gaze of “everyone,” or, adjusting social theorist George Herbert Mead slightly, subjects learn to internalize the normative gaze of a generalized other. [3]

    Michel Foucault’s Discipline and Punish describes the institutional processes whereby the normative gaze of the other—a prison guard, a factory manager, a teacher, a military commander, or the norms of the human sciences and the helping professions—becomes progressively installed within subjects. Discipline bears on the “soul.” [4] According to Foucault, punishment in disciplinary society “acts in depth on the heart, the thoughts, the will, the inclinations.” [5] Discipline is the “technical transformation of individuals.” [6] Through repeated exercises and observation, the individual gains useful habits. Discipline is a set of double relations. It produces docility, on the one hand, and increased utility or capabilities, on the other. [7] Discipline creates a common social plane—it fixes norms for a given population and creates a “social body.” Discipline also measures and differentiates individuals with respect to this social norm. [8] In other words, there is individualization, but in relation to a broader conception of the “social.” The shift away from sovereign vengeance with the Enlightenment and modernity is therefore described by Foucault as a shift to the “defence of society.” [9] According to Foucault, the historical transformation of modernity is one where the disciplines “spread throughout the whole social body.” [10]

    Foucault reminds us that the “‘Enlightenment’, which discovered the liberties, also invented the disciplines.” [11] For Foucault, disciplinary power is the “dark side” of a “formally egalitarian juridical framework.” [12] We should recall, however, that the generalization of disciplinary power is coeval with the emergence of parliamentary democracy. In contrast with Foucault’s exposition in Discipline and Punish, I explore here a different, more positive aspect of this co-relation between discipline and the concept of equal human rights: discipline’s relation to continuous improvement with respect to humanitarian purposes and the purposes of self-government.

    Foucault states that the “ideal point of penalty today would be an indefinite discipline: an interrogation without end … a procedure that would be at the same time the permanent measure of a gap in relation to an inaccessible norm and the asymptotic movement that strives to meet in infinity.” [13] To be sure, Foucault means this critically. A literal interrogation without end would be torturous. Yet, isn’t this the very horizon of the Enlightenment? The Enlightenment project and the project of democracy are a constant interrogation of present circumstances in relation to norms of human dignity, democracy, and justice. In other words, the Enlightenment project is one that grapples with a “lasting hiatus” or “incommensurability” between norm and the reality of human behaviors, between a rule and its application. [14] This incommensurability is also the horizon of Marxism. Marxism exploits the gap between norm and reality: it is the space of critique.

    Marxism is a philosophy and a revolutionary praxis of progress. As Étienne Balibar argues, the “question of historicity is one of the most open questions of the present time.” In addition to moralizing religious discourses, there seem to be two dominant tendencies today: the return of a Hobbesian “‘war of each against all,’ which requires the creation of an external power of constraint.” We could call this first option authoritarian neoliberalism, which encloses so much thinking and political action in the United States since the early 1970s. The second option is “to plunge historicity into the element of nature (which seems to be an emergent tendency in the current revival of vitalist philosophies).” [15] We could broadly designate this second option as one that subsumes politics and critique to biopolitics and affect, keeping analysis and advocacy occupied with ontological or immanent concerns.

    The third possibility, however, is to think “for and against Marx,” to “think the change of historical institutions … the ‘change of change’ … on the basis of the relations of force which are immanent in them in a way that is not merely retrospective but, above all, prospective,” to think the articulation of a “problematic of modes of production,” and a “problematic of the mode of subjection.” As opposed to models of linear evolution, “we would have to liberate the … notion which gradually took shape within his writings: the notion of tendency and its internal contradiction.” [16] Marx, according to Balibar, is poised between philosophy and politics, between “theoretical knowledge of the material conditions which constitute the present,” and “action in the present,” between “liberatory, egalitarian insurrection,” and “science.” [17] What stands in the way of such prospective, liberatory, and egalitarian thinking and action? Among other challenges lies one particularly deep barrier. Today, we are experiencing “the decay or ‘the decadence’ of the idea of progress.” [18]

    In sum, the transformation from feudalism to modernity correlates with a transformation of subjectivity, as subjects are encouraged to understand themselves and their relation to society from the perspective of social norms that demand a certain manner of being in public. Foucault’s discussion of disciplinary power describes how this process of subjectification was institutionally disseminated, and how this process of subjectification was at the same related to what came to be referred to as “the social.” Foucault suggests in Discipline and Punish a kind of torturousness to the perpetual interrogation of the present with respect to a norm as the gap between present and norm can never be closed.

    Although it is not hard to think of examples of “Foucauldian torturousness,” I contend this irresolvable gap between norm and actuality constitutes the possibility for critique. [19] Marx, for example, exploits this gap in The Communist Manifesto when he argues that under capitalist conditions, the representative state represents the power of capitalism. Thus the first step to revolution is “to raise the position of the proletariat to the position of the ruling class to win the battle of democracy.” [20] This gap between norms of justice or democracy and present circumstances is where we can find the possibility of liberatory and egalitarian futurity, and of progress: there are these possibilities when there are acts of decision and critique occurring in this gap of discontinuity, inspired by and faithful to those norms, while refusing to be submerged into what merely is, by seeking to improve upon aspects of our existence that measure up poorly to norms of human dignity, democratic egalitarianism, and justice. Today, however, we are experiencing the decay of the orientations to futurity that underwrote, gave credit to, and invested the meaning of reform and revolution. We are experiencing the decay of disciplinary power, the normative gaze of the generalized other, and the faith in a better future. According to some, we are experiencing the “death of the social.” [21]

    Societies of Control and Communicative Capitalism

    According to Michael Hardt and Antonio Negri, today, the disciplinary institutions of civil society are everywhere in crisis and are withering. This means not only that these institutions cannot mediate between social forces and the state, or transmit grievance upwards towards the state for resolution, but that these institutions cannot produce legitimacy for state policies in society. Because they are withering, they fail to shape subjectivities in the way that these institutions once did. [22]

    Hardt and Negri find that there has been a transformation from disciplinary society to “societies of control.” Civil society’s disciplinary institutions have become eviscerated, and control technologies have taken their place. Control technologies operate through new communications technologies and digitalization. DVDs, for example, are encoded so that they will operate on DVD players in one region, but not in others. Control operates through barcodes, RFID chips, digital passcards coding bodies to spaces, biometrics, passwords, and surveillance built into the technologies we use in our everyday lives, from mobile phones and hand-held communication devices assuring that we never leave work when we go home or go on vacation, to electronic book readers that control how long we can choose to lend a book to a friend or prevent us from re-selling that book to a used book dealer. [23]

    Significantly, these control technologies do not bear on the “soul.” One’s “soul” remains untouched when one is digitally enclosed. Control technologies do not require subjects to internalize the normative gaze of the generalized other. Regardless of one’s good habits, intentions, or purposes, the technology will not allow one to lend a book to a friend for too long or to sell it to a used book dealer if we only “possess” the book in an electronic format. For the exercise of “control,” one does not police oneself; one is policed through a code that functions in accordance with its own logic, and irrespective of any self-reflection or training of the subject. Control technologies provide a substitute for disciplinary training.

    With the weakening of disciplinary power, and the erosion of disciplined subjectivities, a process of de-subjectification is unleashed. For Hardt and Negri, bodies and minds are now freed to become a biopolitical unity of multiplicities and singularities. This biopolitical unity would be undisciplined, hence ungoverned and ungovernable by sovereign power.

    For Hardt and Negri, passage to societies of control has consequences for revolutionary potential and for strategies of revolt. In terms of revolutionary potential, there are advantages to the evisceration of civil society institutions from Hardt’s and Negri’s perspective. They can no longer manufacture consent the way that they could in Gramsci’s day. They have lost their disciplinary grip, and they no longer have the capacity to produce disciplined subjectivities that can be incorporated within the hegemonic bloc. [24] In terms of strategies, Hardt and Negri reject Antonio Gramsci’s strategy of counter-hegemonic struggles through civil society institutions like the media, political parties, or labor unions. Because these institutions are withering, they can no longer channel demands to the state. Nor can advances in popular consciousness become inscribed in state policies because mediating institutions linking social forces to the state have become so weakened.

    Moreover, because these representative institutions are weakened, antagonistic interests cannot be so easily mediated or absorbed by the state. Antagonistic forces confront each other directly. Or, the state withdraws from the task of mediating and re-incorporating antagonistic interests, substituting forceful police functions for a lost capacity to mediate conflict. For Hardt and Negri, President Reagan’s firing of air traffic controllers during the PATCO (Professional Air Traffic Controllers Organization) strike, rather than finding a negotiated solution to the labor dispute, is symptomatic of the withering of the mediating role of civil society institutions and a state that has lost the capacity to represent or resolve divergent interests. [25] The state persists, but, from the perspective of liberal democracy, in a post-legitimacy form.

    Hardt draws a connection between the ontological experience of control societies and Giorgio Agamben’s concept of “whatever being.” [26] According to Hardt, control “functions on the basis of ‘the whatever,’ the flexible and mobile performance of contingent identities, and thus its assemblages or institutions are elaborated primarily through repetition and the production of simulacra.” [27] Hardt translated Agamben’s Coming Community into English, which is where Agamben develops the idea that the coming community is “whatever being.” There, Agamben describes whatever being as singularity exposed “as such.” [28] Whatever being is a “perfect exteriority” of humans experiencing “their own linguistic being—not this or that content of language, but language itself, not this or that true proposition, but the very fact that one speaks.” [29] It is the communication of communicability and the exhibition of mediality as such. [30] This communication of communicability, this sharing of linguistic experience in itself occurs without presupposition. Communication without presupposition, foundation, or condition of belonging. This is communication without revelation. [31] It is a communication of … whatever.

    The endless texting our students enjoy, clicking “like” on Facebook, or the YouTube video that gets circulated for a quirky, singular gesture, lead us to realize that content is not what is being communicated. Whether we are talking about a viral video of a UCLA student’s screams as he is getting tasered or the techno remix of his screams that can also be accessed on YouTube, whether it is the torture or the funky remix of the torture, they both share the common denominator of communicability. We realize that anything can be remixed and recirculated, and we communicate this if we take a cue from the website that assembled the “top” remixes of Howard Dean’s 2004 scream that killed his campaign dead in Iowa or the website that has assembled the “top” remixes of Andrew Meyer’s “Don’t Tase Me, Bro,” screams, and post yet another link to the mashup. [32] Or remix the remix. Whether it is a person screaming because he is being tortured, or a danceable remix of the tortured screams, they all share the common denominator of communicability. [33]

    Today, there is the communication of communicability. Television news, for example, invites us to “tell them what we think” by “logging on to our website” or by sending text or twitter messages (which are then read on air or scrolled ceaselessly at the bottom of the screen). Anderson Cooper invites us to blog our immediate reactions to the show in progress (though we are advised to “keep it short” since they don’t have time to “read a book”). In addition to valuable marketing data, we give them “content,” and “reaction” when we participate in the production of communication. This is the potentially infinite productivity of communication, of communicative capitalism. We are entering a condition of reflexivity without normativity and the experience of the communicative equivalence of all opinion.

    What drove this transformation? For Hardt and Negri, as well as for Agamben, transformations in capitalism led to these developments. Hardt and Negri describe a shift from capitalism’s Fordist phase of disciplined industrial production on a factory assembly line to a post-Fordist phase. Under conditions of post-Fordism, automation allows for production with fewer workers, making capital less reliant on labor. New communications technologies allow for goods to arrive “just in time,” allowing capital to employ workers only when necessary. Production occurs through networks, and computer networks are embedded within production processes. In other words, production is not limited to the enclosures of a factory’s walls for an eight-hour workday. By occurring within communications networks, productive activity occurs wherever we happen to be when we get the email, phone call, or text message. Though Verizon says “we never stop working for you,” actually it is their communications technologies that have the consequence that we never stop working.

    Today, production is communicative in nature. We live under conditions of “communicative capitalism.” [34] Communicative speculation is no longer confined to a distinct financial sector of the economy. Even “manufacturing” corporations like General Motors now make most of their money not from producing automobiles, but from financial services. [35] Production comprises the communication of affect, entertainment, code, and the communication of communicativity. We are connected and constantly participating in the neoliberal communicative networks. [36]

    There is a double movement to neoliberalism and the emergence of communicative capitalism. On the one hand, neoliberal subjects must become “flexible” and open to whatever. As sociologist Zygmunt Bauman notes, under conditions of neoliberal globalization, the “pressure today is to dismantle the habits of permanent … regular work.” [37] In this respect, those potentially capable of work have become post-disciplinary in a way that is homologous to the openness to the whatever of viral communicative remixes sharing the common denominator of communicability: both are responsive to whatever.

    On the other hand, at the level of a specific job, specialization has become more intense under communicative capitalism. According to media theorist and activist Franco “Bifo” Berardi, while Fordist factory workers were essentially interchangeable, “attorneys, computer technicians and mall vendors all sit in front of the same screen and type on the same keyboards: still, they could never trade places.” [38] This is homologous to the experience created by the increased personalization of digital media. Based on our digital profiles created and stored by the trackable traces of our prior choices, amazon.com can tailor its marketing to us, websites can individualize the appearances of webpages (and their advertising) to us, and Google can personalize “information” to our interest profiles when we use its search engines. [39] In this way, we are increasingly digitally enclaved and enclosed. (And this, in turn, is homologous to the increased segmentation and segregation of lived geographic space. [40] ) Subjective experience under neoliberal conditions, and amplified by communicative capitalism, is increasingly narcissistic, enclosed, and self-referential. Like a market niche.

    Berardi explores the psychic costs of the “new economy,” finding that depression is “deeply connected to the ideology of self realization and the happiness imperative.” [41] With our personal communication devices, we are plugged into digital networks that function at the speed of light, and we are constantly on call for when the production process needs us. Depression, then, can be a defense mechanism of the organism against this excessive flow that overwhelms what a human can bear, as it detaches from the network for self-preservation. [42] Berardi also suggests that depression is linked to the consequences of neoliberalism that “many are called but only a few are chosen,” yet neoliberalism cannot acknowledge the necessity of widespread entrepreneurial failure without putting the fundamentals of the system itself in ideological jeopardy. [43] The popularity of reality television in the United States, however, trades on viewers who enjoy watching the prevalence of competitive failure, from The Apprentice or Celebrity Apprentice (You’re Fired!) to the extended period of time American Idol devotes to showing those who try out for the singing competition and yet who clearly cannot sing whatsoever so the viewer can laugh at them and then enjoy the pleasure of watching the judges laughing at them as well. [44] Therefore, it seems more accurate to say that there is affective pleasure in enjoying neoliberalism’s failures as long as it isn’t me, though subjects may experience the stress that it could be me, and this can manifest itself in anxiety, insecurity, or the depression Berardi documents.

    Or anger and resentment. Some reasonably do not want to become more “flexible,” or open to “whatever.” Some are angry at becoming “redundant” and “unnecessary” from the perspective of global capital. With neoliberalism’s embrace of competition, this means that inequality is fundamental (some are winners, others are losers; some have more, others less; someone got the job, others did not), as opposed to the Enlightenment’s orientation to equality. For some, this is appealing. They are attached to inequality and enjoy it. They enjoy their anger with the Enlightenment’s equal rights or with unromantic modernity’s orientation to social democracy and cultivate it. Under post-disciplinary conditions of communicative capitalism, one is encouraged not to discipline oneself, but to express oneself. [45] So while some open to whatever are clicking “like,” others are attached to expressing their anger, which they do by watching Fox, by reading the New York Post, or by logging onto breitbart.com. Or worse.

    Whatever being, then, is shadowed by a doppelganger that shares a post-disciplinary responsiveness to the injunction of expression, as well as a post-truth relation to new media. Suspicious of professional norms and affectively incited, whatever being’s doppelganger calculates that if general social norms are lacking, and if everyone is biased, then my affective attachments are as good as anyone else’s. Who’s to say they are wrong or bad? So if I enjoy this, if I am affectively attached to it, then I should express this and no one has grounds to criticize me. Whatever being does not check these tendencies of its doppelganger, it accommodates them because it concedes the condition of interpretive multiplicity without normativity that its doppelganger seeks to exploit. To emphasize: critique has become displaced. [46] What we have instead of antagonism is either an openness to whatever or affective expression that appears in a narcissistic niche of communicative capitalism.

    Let’s bring this back to the field of crime and punishment—the centerpiece of Discipline and Punish. The criminologist David Garland describes how, in the late 1960s, public policy relating to crime and punishment was not politicized. The politicians of both political parties in the United States were content to defer to the experts, and the experts sought to implement the “correctionalist” policies that were the subject matter of Foucault’s scholarship published in the mid-1970s. Correctionalism was critiqued by radical criminologists for not working—a critique that resonated with fringe rightwing politicians and the position papers of rightwing think tanks. In the late 1960s, correctionalism was hegemonic. Beginning in the 1970s, however, its institutional structure collapsed with devastating speed, “like a house of cards.” [47] As Garland puts it, no one “could have predicted such an outcome, and no one did.” [48] He finds the demise of correctionalism and its rehabilitative ethos not to be driven by “reasoned criticism” and “adjustment to negative findings,” but a “collapse of faith” that was “something akin to a stockmarket crash.” [49]

    Foucault notes that neoliberalism is hostile to planning or state intervention to correct anti-social developments because of its distrust of knowledge: intervention is pointless because of spontaneous order, and it is dangerous because of the limits of knowledge—by intervening, you can make things worse because you may not know what you think you know. [50] Under the current neoliberal formation in the field of crime and punishment, with the demise of professional credibility or faith in the use of social science knowledge in public policy making, we do not merely have pro-market advocacy, which Foucault attributes to neoliberalism, or an actuarial focus on risks of crime or crime statistics. [51] Additionally, the United States experience with neoliberalism indicates an affective or expressive dimension to state policies regarding crime and punishment. That is, with the politicization of criminal justice policies through rightwing populism, politicians seek to express moral outrage by voting for ever-more severe criminal punishments. With the demise of credible knowledge, instead of the control of passion in the interests of self-government, state policies now express affect or passion, such as outrage at evil. In this vein, conservative legal scholar Walter Berns describes one of the benefits of capital punishment in 1979 as “the pleasure arising from … exacting revenge.” [52] Symbolically, criminological and penal practices are now forms of government marking certain populations as undeserving of social inclusion, equality, or human dignity. [53]

    The rehabilitative ethos had been supported by a social mentality of mutual trust and social solidarity. [54] Today, the prison is correctional only in name as its functionality is to contain evil monsters indefinitely as an extension of “zero-tolerance” and preventative policing crime mentalities. These practices are completely antagonistic to a governmentality of social solidarity, and there is no need for knowledge since radical evil defies rational comprehension and explanation. [55] What have been the consequences of this collapse of faith in criminological expertise? An increase of those incarcerated in the United States by a factor of over 500 percent, which has produced a devastating impact on communities, families, the human rights of those incarcerated, and state and federal budgets. How should we describe this “collapse of faith” that Garland likens to a “stockmarket crash”? It is the collapse of the horizon of social democracy, of the Enlightenment, and of modernity—the collapse of faith in a meta-narrative of progress and social improvement.

    Norms and Futurity

    We can compare planned protests by the civil rights movement in the 1960s seeking enforcement of the Fourteenth and Fifteenth Amendments, as well as non-discriminatory treatment, to more recent demonstrations, in terms of public reaction to police violence against the demonstrators. The civil rights movement received sustenance from a normative gaze of the generalized other, and faith in future progress. Although repetitive police violence against contemporary left-oriented demonstrations could be understood as a sign of state impotence in terms of garnering liberal democratic legitimacy for its policies, it is also a sign of a weakening in the norm that the state should not treat its people like “the enemy,” or that it is not “criminal” to exercise democratic rights. [56] We cannot count on a collective social judgment based on the norm that police violence against demonstrators is wrong. With the weakening of the normativity of trying to make human dignity more effectual, then, it becomes increasingly difficult to have faith in progress towards modernity’s ideals, or hope for a better future.

    It is commonplace to discuss the helpful role of the media regarding the civil rights movement. I would like, however, to distinguish an issue that might be, incorrectly, conflated with “the role of the media,” the significance of a general social norm against torturous or brutal state acts. I will do so, in large part, by returning to Aldon Morris’ classic case study of the civil rights movement.

    Morris’ The Origins of the Civil Rights Movement is a well known in the literature on social movements as an example of resource mobilization theory. Resource mobilization theory is an approach to social movements that emphasizes the significance of organizational measures to overcome free rider incentives and to turn discontent into a political mobilization that can be sustained in order to achieve political or economic improvements that ameliorate the conditions that were the source of widespread discontent. [57] Therefore, Morris’ study is dedicated to bringing forward evidence that contradicts two familiar approaches to the civil rights movement. One is a liberal narrative that describes the Montgomery bus boycott, for instance, as spontaneously emerging when Rosa Parks was too tired to move to the back of the bus one day. The other is the approach of Francis Fox Piven and Richard Cloward, Poor People’s Movements, that argues movements win most of their gains before they are formally organized, and that formal organizational efforts tend to pacify and depoliticize the movement. [58] By contrast, Morris is unrelenting in his emphasis on the significance of the organizational efforts to mobilize large numbers of people, to engage in strategic planning, formulate goals, and sustain the movement until goals were met. Because of his emphasis on organization, the fact that evidence can be found in his text for the importance of ideological structures and symbols lends them even more significance since Morris’ methodological argument should lead him to downplay these elements.

    Morris criticizes studies of the civil rights movement contending that the reason civil rights leaders chose to target Birmingham, Alabama was the presence there of Eugene “Bull” Connor, who could be counted on to overreact with police brutality against civil rights demonstrators, thereby generating favorable media coverage for the movement. According to Morris, Birmingham was chosen because of the organizational strengths of the SCLC affiliate there. [59] Morris also argues that if the goal was to “provoke white racists to beat blacks, then no economic boycott was needed.” [60]

    Yet on the very next page after Morris criticizes scholarship emphasizing symbolic reasons for choosing Birmingham as a demonstration site, he notes that Birmingham “symbolically stood as the racist capital of America,” and that “SCLC leaders reasoned that if racism could be defeated in Birmingham it could be defeated throughout the South.” [61] When Bull Connor ordered fire hoses be turned onto the protesters, and unleashed billy clubs and dogs on them as well, the photos that “captured the cruelty were distributed around the world.” Morris describes how these photos made the crisis in Birmingham into the “top priority of the nation and the government.” When violence broke out again in the following days, President Kennedy sent the head of the Justice Department’s Civil Rights Division, Burke Marshall, to “press economic elites to reach a settlement” with the movement. Kennedy, according to Morris, also “made contact with Northern capitalists who owned most of Birmingham’s businesses to use their influence over the local business leaders of Birmingham.” In other words, as photos of police brutality were published nationally and globally, the Kennedy administration intervened on behalf of the movement’s economic boycott. Morris also quotes Martin Luther King, Jr., who summarized the gains made by the economic boycott: “the white business structure was weakening, under adverse publicity, the pressure of our boycott, and a parallel falling-off of white buying.” [62] The organizational efforts of an economic boycott were supported by public outrage at the brutality practiced by Connor’s police against the civil rights demonstrators.

    Morris encapsulates the event of the civil rights demonstrations in Birmingham:

    The nation was being treated to the spectacle of an American city practicing totalitarian behavior against some of its own citizens. The world, including countries that had long maintained that the United States’ rhetoric about democracy was in fact a lie, watched “American justice” being displayed in Birmingham by television and satellite. At home many citizens were shocked by the oppression existing in Birmingham and looked to a President whose image epitomized liberalism and fair play. Kennedy had little choice but to act. [63]

    Morris’ analysis anticipates later scholarship discussing the role of the Cold War and the battle between the United States and the Soviet Union over which path to modernity other countries of the world should take (capitalist or socialist), and which path better realized democratic norms. [64] During the Cold War, the Soviet Union could point to racial segregation as proof that the practices of the United States did not match the norms of democracy they preached—racial segregation contradicted norms of democracy, and the United States government felt the sting of these criticisms deeply. For instance, when the Supreme Court decided racial segregation was unconstitutional, it was widely publicized through Voice of America around the world. [65] Domestically, Morris finds that Kennedy was forced to act by the visible contradiction between democratic norms and the police practices in Birmingham. When the nation was confronted with such clear evidence of police violence, the denial of civil rights, and the violation of democratic norms this demonstrated, the ideological contradiction was such that Kennedy could not do otherwise than to address it.

    To be clear, I am not underplaying the important role of organization to the civil rights movement. I am, however, indicating the importance of a hegemonic norm and the significance of internalizing the gaze of a generalized other—how does one appear to others—for the success of these demonstrations. As King argues with respect to the Selma march on behalf of voting rights, the “goal of demonstrations in Selma, as elsewhere, is to dramatize the existence of injustice and to bring about the presence of justice by methods of nonviolence. Long years of experience indicate to us that Negroes can achieve this goal when four things occur.” King then lists the following four factors:

    1. Nonviolent demonstrators go into the streets to exercise their constitutional rights.
    2. Racists resist by unleashing violence against them.
    3. Americans of conscience in the name of decency demand federal intervention and legislation.
    4. The administration, under mass pressure, initiates measures of immediate intervention and remedial legislation. [66]

    Here again, one can see the compelling force of the norm against police and mob violence, and the force of seeing democratic norms being contradicted for “Americans,” and the way the administration feels this democratic pressure and is forced, normatively, to act. The movement could count on public judgment and organize around that social norm.

    Being involved in the civil rights movement had very high costs for participants. The risk that if one were seen trying to register to vote, one might lose one’s job, the risk of being beaten, the risk of being beaten to death. What could sustain this movement? According to King, referring to students involved in freedom rides and lunch counter sit-ins, they “had faith in the future…. [T]he movement was based on hope.” What was this hope? According to King, “this movement had something within it that says somehow even though the arc of the moral universe is long, it bends towards justice.” [67] This is the horizon of modernity, faith in progress towards justice, and the hope that human dignity could be more adequately realized. When Garland describes the early 1970s “collapse of faith” in correctionalism as the organizing presupposition of crime and punishment policies as akin to a “stockmarket crash,” he is describing one aspect of the horizon of modernity’s collapse.

    Policing Protest in the Post-Fordist City

    The post-Fordist political economy of urban redevelopment has made the policing of disruption imperative. Over the last twenty years of the twentieth century, cities reoriented services and infrastructure away from residents and towards those who might visit the city as a tourist or shopper. Cities entered a global inter-urban competition for tourist dollars and conventions. They responded to their urban fiscal crisis by trying to remake themselves as places of fun (rather than danger or disorder), brand themselves to carve out particular niches in the global market for visitors, and to market themselves to potential tourists, conventions, and as suitable locations for global capital, by hosting “mega-events.” As producers of entertainment and manufacturers of simulacra—where entertainment, marketing, and the FIRE industries (finance, insurance, real estate) meet—when a city hosts a mega-event, the event must occur without disruption for the city’s branding and marketing strategy to work. [68]

    The fate of the mega-event and the fate of the city are intertwined. New York City, known for its “zero-tolerance” crime policies, had reasons rooted in post-Fordist political economy to assist the Republican National Committee’s (RNC) goal of successfully staging the Republican National Convention in 2004. [69] While the RNC sought to use New York City’s landscape as theatre props to reproduce a political mentality rooted in September 11, 2001, New York City, to show that it had recovered and was “back” after those attacks, needed to be able to prove it could host a successful mega-event. Though the RNC has political interests in keeping demonstrators opposed to Bush administration policies far away from the convention site, the City also had an interest in doing so rooted in the neoliberal logic of marketing and placebranding urban space. [70]

    The Supreme Court reacted to the civil rights demonstrations of the 1960s with a number of important legal decisions that enlarged upon the “concept of a public forum” under the First Amendment. [71] According to the Supreme Court’s public forum doctrine, places like public parks, streets, and sidewalks are where one’s First Amendment rights of freedom of speech and assembly are on the strongest grounds. At midcentury, the Supreme Court recognized that the possibility of disruption or caustic attacks were likely when First Amendment rights were exercised in a democracy. [72]

    The neoliberal, post-Fordist logic of urban governance has been reflected in significant developments in First Amendment law. In a growing number of more recent lower level court decisions, courts have allowed cities hosting mega-events such as World Bank/ International Monetary Fund (WB/IMF) meetings, meetings of the G-20, or major party conventions, to zone protests away from convention sites in order to prevent disruption to the event, or to prevent conventioneers from even seeing protesters. For example, when New York City hosted the RNC in 2004, organizations seeking to host a major rally were prevented from doing so on the Great Lawn of Central Park. They were told that they could either have a smaller rally at another location in Central Park, or the city offered the organizations two alternative sites which were not on the island of Manhattan, for a rally of the size that the organizations were seeking to host. The City of Boston, where the Democratic National Convention occurred in 2004, created a “Demonstration Zone” (DZ) with opaque fabric (and wire mesh) so that protesters and dignitaries could not see each other. Located underneath elevated railroad tracks, even the judge who sustained the legality of the regulation conceded that the “pen” reminded him of a prison. Today, courts deem it sufficient if demonstrators can express themselves or voice their opinion while zoned to remote locations. These appearances are sufficient for the neoliberal reconfiguration of the First Amendment occurring in lower courts. [73]

    These emergent legal changes are homologous to the post-Fordist experience of society’s self-reflexive understanding of infinite communicative possibility. Expression is the means and the end. It is pure means. You can choose to watch the video of protesters on YouTube. Or not. You choose. Whatever. This is why it “suffices” for a right of expression to locate the demonstration far from its object of dissent. The rights of speech and assembly have been disarticulated from the politics of democracy—where there might be disruption—in the neoliberal juridical order. These legal developments correspond to an experience of communicative multiplicity without normative contradiction. This is communicative participation in the absence of democratic practices or sensibilities. Without the norms of disciplinary society, with the weakened hold of the normativity of human dignity or egalitarianism, antagonism and critique are increasingly foreclosed, and the mere expression and the experience of infinite communicative possibilities remain.

    Unfortunately, these “cultural” developments also have consequences for expressions of police violence as well. Looking back over the last decade or so at the way protests have been policed, we can see that a post-democratic, neoliberal form of protest policing has emerged and is becoming institutionalized through repetition. Urban sociologist Alex Vitale reminds us that New York City was developing post-democratic forms of policing in the late 1990s when a riot squad rushed the stage at the Million Youth March the instant time expired on the rally permit. [74] At the anti-WTO protests in Seattle, 1999, the Seattle Police Department (SPD) attacked peaceful practices of civil disobedience and used tear gas and pepper spray unjustifiably—sometimes to get a crowd to disperse or even just to move people back a few feet. The ACLU of Washington state, in addition to finding that the city’s declared “no protest zone” violated the First Amendment, noted the overreaction of the SPD, inappropriate use of chemical weapons against peaceful crowds, and acts of abuse by individual officers in a report prepared in the aftermath of the protests. It also issued numerous recommendations for future police practices that would be more consistent with the constitutional rights of demonstrators. [75]

    The Citizens’ Panel on WTO Operations issued a report to the Seattle City Council Committee on WTO Accountability, which, in addition to complaining about problems with cooperation by the SPD, roundly criticized the SPD’s use of chemical irritants. The “Report of the Citizen’s Panel on WTO Operations” found, on the one hand, a failure on the part of the SPD to deploy adequate numbers of officers before demonstrators arrived at WTO sites, which necessitated use of less-lethal force weaponry. On the other hand, when the numbers of the SPD were bolstered by the deployment of several hundred mutual aid officers from surrounding areas, “chemical irritants remained in use.” [76] The City of Seattle has settled lawsuits and claims for the violation of speech and assembly rights stemming from its policing of WTO protests, such as mass arrests without probable cause, for sums totaling approximately $1.8 million. [77]

    John Timoney worked in the New York Police Department (NYPD) before becoming the Police Chief first of the Philadelphia Police Department and then the Miami City Police Department. While in Philadelphia, he was in charge when Philadelphia hosted the RNC in 2000. Groups faced significant difficulties applying for permits to march or demonstrate because of the agreement between former Philadelphia Mayor Ed Rendell and the Republican party that gave the Republicans a right of first refusal to most of the city’s major gathering places. [78] Police treatment of demonstrators was criticized for violating their civil rights because of tactics such as baseless charges, preemptive arrests, exorbitant bails, and abusive treatment of those detained. [79] Many demonstrators sued the city (which had taken out an insurance policy for the 2000 RNC that included liability protection for claims of false arrest, wrongful detention, malicious prosecution, and assault and battery), and the city settled the suits in some cases for tens of thousands of dollars, and in others for undisclosed sums. [80]

    When Timoney moved on to Miami, the city hosted the Free Trade Area of the Americas (FTAA) talks. Police, dressed in riot gear and often without identification, used percussion grenades, rubber bullets, and tear gas against protesters. Among those who follow the policing of protest, Miami’s response to the FTAA protesters became known as the “Miami Model.” Ultimately, the City of Miami settled lawsuits for violating the civil rights of demonstrators and a filmmaker for $340,000 and the County paid about $300,000 to settle lawsuits arising from police violence. [81]

    On February 15, 2003, in cities around the world, millions of people demonstrated opposition to a United States-led invasion of Iraq. In New York City, headquarters to the United Nations, Mayor Bloomberg and NYPD Commissioner Raymond Kelly refused to allow a protest march being organized by the anti-war organization United for Peace and Justice (UFPJ). The NYPD cut off access to the permitted stationary rally. They used pepper spray to back demonstrators away from barricades or against those who failed to retreat quickly enough. Mounted police drove their horses into the massive crowds, knocking people to the ground, while officers on foot used their batons. Videotape of the mounted police captures officers telling the demonstrators to “go home.” Police used interlocking barricades to “pen” protesters. Those who sought to leave a pen were generally required to leave the area, and officers did not allow those who left a pen to reenter. This became especially problematic due to the fact that the temperature that day in New York City was approximately 15 degrees Fahrenheit and the City prohibited public restroom facilities at the rally site. Those arrested complained they were not given reasons for their arrest and they were not advised of their rights. [82] At an anti-war demonstration later that spring, the NYPD unlawfully arrested protesters, detained them for excessive periods of time, and denied them access to their lawyers. The City of New York settled the suits in 2008 for $2 million. [83]

    New York City hosted the RNC in 2004, and made approximately 1,800 arrests in connection with maintaining security for this event, including about 1,200 on the second day of the convention. Most of those arrested were charged with minor offenses that are not generally considered “crimes,” but “violations.” Usually, those charged with violations are given an “appearance ticket” or a “summons,” which means that they tend to be released within a few hours. When someone is “arraigned” under New York law, they are usually presented to a judge within 24 hours. During the RNC, New York City sought to hold virtually all of those arrested for arraignment, and they did not arraign those arrested in a timely manner. Hundreds of those arrested were held longer than 24 hours and some were even held prior to arraignment for up to three days. Those arrested at the RNC were held in custody at an old bus depot known as “Pier 57” which had holding cells topped with razor wire. The floors were covered with grime and oil, and therefore likely hazardous. There was no access to running water, blankets, and many in custody were forced to relieve themselves out in the open. [84]

    After the anti-war protests of February, 2003 and the documented New York Police Department (NYPD) abuses of the rights of those demonstrators, the NYCLU obtained a court order prohibiting the NYPD from closing streets and sidewalks without informing the public of alternative routes, and requiring the police to allow people to move freely in and out of any pens set up by police. Although there were some reports of police using metal barricades, the NYPD used plastic mesh netting to rush into crowds and conduct mass arrests during the RNC of 2004. Additionally, there were numerous reports of plainclothes officers on motor scooters driving into groups of protesters. Many arrestees were bystanders unconnected with political demonstrations, and many of those targeted by police were observers (such as legal observers). [85] The NYPD also conducted mass arrests without individual probable cause in violation of the Fourth Amendment. [86] The City of New York has paid more than $1.5 million to settle over 140 lawsuits arising from NYPD misconduct against demonstrators, while another class action has been certified against the City and is still outstanding. [87]

    Again, there were preemptive arrests, baseless searches, baseless charges, and excessive detentions when St. Paul hosted the 2008 RNC. Journalists Amy Goodman and Sharif Abdel Kouddous, and producer Nicole Salazaar, were among those targeted by law enforcement when they were assaulted and arrested by law enforcement at the Convention. The journalists sued various agencies and the municipalities that cooperated for this event, reaching a settlement that includes $100,000 in compensation from the Minneapolis and St. Paul police departments as well as the Secret Service. There have been numerous other settlements for civil liberties violations by various agencies that policed the 2008 RNC. These include a settlement for $27,000 against the Ramsey County Sheriff’s Department for confiscating the constitutionally protected literature of six individuals, a $50,000 settlement against the FBI and the City of Saint Paul for a preemptive raid they conducted on the home of vegan activists, and a $5,000 settlement for the wrongful arrest and detention of a man handing out leaflets in June to promote a rally that would take place during the RNC later that summer at the Xcel Center (the convention center that hosted the RNC in St. Paul). [88] St. Paul, however, negotiated a deal with the RNC host committee requiring the host committee to purchase insurance covering damages and legal costs for police accused of “brutality, violating civil rights, and other misconduct.” [89] Considering that the host committee is funded by private donations, and the virtually unlimited flow of money on the part of corporations and wealthy individuals seeking to influence elections, any financial check through civil litigation against police abuse of force seems lost with this development.

    Three investigations have also been launched to investigate the City of Pittsburgh for its handling of demonstrations when the city hosted the 2009 G-20 meetings. [90] The investigation of the Citizens Police Review Board was impeded, however, because of the refusal of police to release documents normally public, such as arrest reports. [91] The ACLU of Pennsylvania filed a federal suit on behalf of those swept up in a mass arrest contending that they were falsely arrested and that the police used pepper spray and fired pepper balls unnecessarily and without provocation. At least three other cases have also been filed against the City of Pittsburgh and the United States Secret Service. [92] In these four cases, the city of Pittsburgh was ordered to pay attorney fees to groups seeking to hold demonstrations in the city; it settled a second case by agreeing to pay $72,000 to a bystander whose hearing was permanently damaged by Pittsburgh’s deployment of an LRAD; the city settled a case by agreeing to pay $143,000 to two environmental groups whom the city persistently harassed, intimidated, and ultimately prevented from exercising their First Amendment rights; and the city of Pittsburgh has reached settlements with some, though not all, plaintiffs who sued the city as a result of a mass arrest at the G-20 Summit. [93]

    The NYPD’s sometimes violent harassment of Occupy Wall Street! (OWS)—to say nothing of the harassment of the Occupy! movement across the country, most notoriously the Oakland Police Department’s attack on Occupy! protesters in Oakland—has resulted in several reports condemning police for violating the rights of protesters. It has also resulted in several settlements with the City of New York, and more likely to come in the future. These settlements include $50,000 in a case in which the NYPD arrested three individuals officers believed might attend a protest; $25,000 to a woman after she was booted to the head and hit with a baton on her shins; and the NYPD’s raid on OWS and its destruction of the OWS library has led to a $350,000 settlement. [94] These sums are likely to increase dramatically once pending cases of those involved in a mass arrest on the Brooklyn Bridge, and cases involving those pepper sprayed and sucker punched, are resolved.

    What are we to make of this pattern of repetitive abuse? After the shock and outrage over the way that police treated those who demonstrated in favor of civil rights in the 1960s, the policing of protest developed into a system described as “negotiated management.” [95] With negotiated management, police keep open lines of communication with demonstrators, and public order is balanced by a recognition that protesters have constitutional rights of assembly and speech in places known as “public fora.” The use of force by police should only be considered as a last resort and should be proportionate to the threat. This is a model of policing based in tolerance, and social solidarity. Therefore, it can be understood as the institutional response to the outcry against acts of visible police brutality against demonstrators exercising their First Amendment rights.

    Beginning in the late 1990s, however, a pattern of police violence against non-violent demonstrators, particularly when the city is hosting a “mega-event,” has emerged. The system of negotiated management has been superseded. Police aggressively use violent tactics against demonstrators, committees or boards conduct reviews and publish findings. Legal organizations like the ACLU or the Lawyer’s Guild issue reports. Cities are sued. And in a number of cases, the results of civil litigation involve significant financial awards to plaintiffs. Yet there is no “learning curve.” Instead, the acts of police violence are repeated.

    Why has the system of negotiated management been superseded? Some suggest that cities have become hypersensitive to any signs of disorder, and policing today reflects a “zero-tolerance” mentality generally toward any sign of disorder. [96] This does not, however, explain certain “irrational,” excessive, or indeed expressive aspects to the contemporary policing of protest. Widely circulated examples of abuse, such as plain clothed NYPD officers driving scooters into groups of people to create chaos, “pop-up” plastic mesh pens trapping any who happen to be inside the mesh—protester or passerby, pro-active use of less lethal weaponry against non-violent demonstrators, and police departments not seeming to care about the potential financial liabilities of these violent forms of policing (or having purchased insurance to protect against potential financial liabilities), indicate something more than an aversion to disorder is at work. [97]

    The normative value of human dignity and egalitarianism made possible the institutionalization of negotiated management within law enforcement. Today, police are expressing an affective antipathy to demonstrations of support for human dignity and egalitarianism. In the late nineteenth and early twentieth centuries in the American South, public torture lynching was a spectacle that expressed rebellion against the principles of equality, due process, and correctionalism—the principles of “modern” penology (the subject of Discipline and Punish) and social democracy. [98] More contemporary spectacles of police in riot gear seeking to defeat political demonstrators exercising their right of assembly on behalf of a critique of the present expresses the weakening of the institutionalization of the norms of human dignity and equality within police departments. It expresses angry resistance to how the people’s critique of present circumstances is the force of progress that deepens the actualization of those norms today and with an orientation to futurity. This spectacle of abusive policing may indicate an inability of the state to produce legitimacy for its policies resulting from a political embrace of neoliberalism. Without state concern for democratic legitimacy, this spectacle also manifests the collapse of faith in democratic progress immanent to neoliberalism.

    When cities host mega-events, patterns of police violence against non-violent demonstrators are repeated. We can diagnose how this repetition fails to incite collective outrage that could lead to reform. Let’s return to Martin Luther King, Jr.’s points three and four above. In the third point, King finds that Americans of conscience will see that police violence violates democratic norms and that they will demand policies to redress this gap between norms and police practices. In the fourth point, policymakers will feel the force of the norm, feel the force of public pressure to redress the conditions that contradict the norm, and feel compelled to sustain the norm by correcting the police practices that deviate from the norm. Conditions three and four, I suggest, are lacking today with the evisceration of disciplinary power institutionalizing Enlightenment and social democratic norms. With the communicative equivalence of all opinion, and reflexivity regarding the multiplicity of communicative possibility, the normative gaze of the generalized other becomes weakened, as does modernity’s meta-narrative of progress towards justice, human dignity, and democracy.

    Under contemporary conditions where norms pertinent to human dignity or democracy no longer seem to function as efficiently as they once did, a video of police violence now simply adds one more frame to be communicated. It may even become communicable through someone’s mashup. Contributing to communicative multiplicity, police release their own videos of clashes between police and protesters. [99] They even release their own mashups of their videos, selectively editing them to communicate a more favorable brand. [100]

    The upshot of this communicative multiplicity along a common denominator of communicability is, on the one hand, to cultivate a “whatever” responsiveness to videos communicating police violence. In this regard, we can appreciate some of the amusing commentary that some contribute to such circulating imagery, like the response to the viral photo of Occupy Portland’s Liz Nichols being pepper sprayed by Portland police directly into her open mouth written by “sixfingered”: “I bet buffalo wings don’t even phase [sic] her now!” As subjects have become reflexive about mashups, however, it is unsurprising that one suspiciously wonders whether the photo itself may have been doctored (the homepage manager of The Oregonian posted a response from the photographer stating that the photo was uncropped, untoned, and certainly not photoshopped, so it appeared exactly as it had coming out of the camera). [101]

    On the other hand, without normative standards to judge the proliferating communication of potentially mashed up photography, the guide becomes one’s affective attachments. To take this line of reasoning further, the communication of a photo or video in which police violence against demonstrators appears may not inspire outrage. Some enjoy the expression of police violence against demonstrators. As “Godhelpus” writes in the comment thread to the photo of Nichols, “Welcome to the liberal oregonian who along with the freak mayor empoyered [sic] this disgusting movement and filth…. Excellent pitcher [sic] of this liberal nut getting pepper sprayed when her mouth is wide open … [sic] I support our police department over any of these freaks.” [102] Or as “Don Collier” writes with regard to the viral video of NYPD Deputy Inspector Anthony Bologna pepper spraying women at OWS who were already penned within orange netting on a sidewalk and therefore posing no threat at all: “These are common criminals [he is referring to the women being pepper sprayed]…. Do I enjoy watching these people suffer? I revel in it.” After others criticize him for his “sick” enjoyment of the video, he responds, “I love it. Few things make me happier than pepper spray and protesters.” [103] Don Collier exemplifies post-disciplinary affective attachments as he enjoys watching Bologna take revenge on those exercising the rights of democracy to protest neoliberalism’s expropriation of the people.

    “Forbalance” sums up the contemporary moment in the comment thread accompanying the photo of the police pepper spraying Nichols in her mouth. “One thing I do like about the photo,” this person writes, “is that it can be interpreted in so many different ways…. Some can look at it and imagine police brutality, others can see someone’s daughter who became an idiot.” A video communicating police violence becomes another moment in the communication of communicability, a moment of reflexivity regarding communicative multiplicity, or a moment of enjoyment to revisit one’s affective attachments. It no longer reveals a wrong or inspires collective outrage. [104]

    Under the neoliberal conditions of communication of communicability, a video communicating the spectacle of police violence merely appears. In a niche or zone. Like the protests. Some may affectively enjoy the abuses protesters endure at the hands of police. Some might mash it up. Others might forward the link. Or they might not. Whatever.

    Conclusion

    In this chapter, I have re-traced a familiar argument that disciplinary power has become weaker, and that control technologies functioning through communication systems are displacing patterns of order premised on disciplinary power. Under the conditions of communicative capitalism, the normative gaze of the generalized other no longer functions with the force it once did. Control increasingly operates independently of the habits or “soul” of the subject—it operates through digital codes communicating with other digital codes. Under contemporary conditions of communicative capitalism, an experience of infinite communicative possibilities and the communicative equivalence of all opinion indicate the loss of modernity’s meta-narrative of gradual progress realizing norms of human dignity and democracy.

    Under these conditions, First Amendment jurisprudence has become reshaped in a neoliberal form that allows a demonstration to be zoned to a location far from (or invisible to) what one seeks to protest. The neoliberal First Amendment is satisfied so long as demonstrators can “express” themselves, producing communicative multiplicity without contradiction. Homologous to this, repeated acts of police using excessive violence against demonstrators in news reports or captured on YouTube videos do not compel normative outrage or changes in police practices the way they did in the 1960s. The communication of police violence does not produce a sense of contradiction, or inspire public denunciation. It adds one more icon to communicative potential. Entering the universe that communicates communicability, it shares the common denominator of communicability with a funny yell or a remix of a tortured scream. That is, it merely appears like … whatever.

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    • Morris, Aldon. The Origins of the Civil Rights Movement. New York: The Free Press, 1984.
    • Moynihan, Colin. “Ejected at ’04 Convention, a protester Gets $55,000.” New York Times (16 November 2008). http://www.nytimes.com/2008/11/16/nyregion/16settle.html
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    • “Occupy Portland: How photojournalist Randy L. Rasmussen captured that image.” The Oregonian (18 November 2011). http://www.oregonlive.com/multimedia/index.ssf/2011/11/occupy_portland_how_photojourn.html
    • Parenti, Christian. Lockdown America: Police and Prisons in the Age of Crisis. New York: Verso, 1999.
    • Pariser, Eli. The Filter Bubble: What the Internet is Hiding from You. New York: Penguin, 2011.
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    • Passavant, Paul A. No Escape: Freedom of Speech and the Paradox of Rights. New York: New York University Press, 2002.
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    • Regan, Sheila. “Activists get $50,000 over RNC Raid.” Twin Cities Daily Planet (26 May 2011). http://www.tcdailyplanet.net/news/2011/05/26/activists-get-50000-settlement-over-rnc-raid
    • Rose, Nikolas. “The Death of the Social? Re-figuring the Territory of Government.” Economy & Society 25 (August 1996).
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    • Shaffer, Gwen. “Bully Puppet: The City’s puppetmakers hoped their civil suits would yield big settlements and reform. Thanks to a massive attack by the city’s high-powered lawyers, they’re getting neither.” The Philadelphia City Paper (15 August 2002). http://archives.citypaper.net/articles/2002-08-15/cover.shtml
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    • Young, Bob and Jim Brunner. “City to Pay Protesters $250,000 to Settle WTO Suit.” The Seattle Times (17 January 2004).
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    Notes

    1. Slavoj Žižek, “The Big Other doesn’t exist,” European Journal of Psychoanalysis 5 (1997), (symbolic efficiency); Slavoj Žižek, Enjoy Your Symptom! (New York: Routledge, 2008), p. 39 (symbolic efficiency); Slavoj Žižek, Violence (New York: Picador, 2008), p. 109 (diminished symbolic efficiency of the Holocaust); Jodi Dean, Democracy and other Neoliberal Fantasies (Durham: Duke University Press, 2009), p. 63ff., gives an overview of the “decline of symbolic efficiency.”return to text
    2. Norbert Elias, The Civilizing Process, Trans. Edmund Jephcott (Cambridge: Blackwell, [1939] 1994), p. 80-81.return to text
    3. George Herbert Mead, Mind, Self, & Society, Charles Morris, ed. (Chicago: University of Chicago Press, 1962).return to text
    4. Michel Foucault, Discipline and Punish, Trans. Alan Sheridan (New York: Vintage, 1977), p. 16 and passim.return to text
    5. Ibid.return to text
    6. Ibid., p. 233.return to text
    7. Ibid., p. 135-136.return to text
    8. Ibid., p. 184.return to text
    9. Ibid., p. 90.return to text
    10. Ibid., p. 209.return to text
    11. Ibid., p. 222.return to text
    12. Ibid.return to text
    13. Ibid., p. 227.return to text
    14. Paolo Virno, Multitude: Between Innovation and Negation, Trans. Isabella Bertoletti, James Cascaito, and Andrea Casson (Los Angeles: Semiotext[e], 2008), p. 102.return to text
    15. Étienne Balibar, The Philosophy of Marx, Trans. Chris Turner (New York: Verso, 1995), p. 119-120.return to text
    16. Étienne Balibar, The Philosophy of Marx, p. 120-121 (emphases removed).return to text
    17. Ibid., p. 122 (emphases removed).return to text
    18. Ibid., p. 84 (emphasis in original).return to text
    19. Many examples of “Foucauldian torturousness” involve the error of attributing political difference to mental or racial inferiority, while others are instances where some seek to achieve the impossibility of making an individual and a group identical to each other through fetishistic holism, and blindness to relationality, discontinuity, and antagonism.return to text
    20. Karl Marx and Friedrich Engels, The Communist Manifesto (New York: Penguin Books, 2011), Sec. II.return to text
    21. Nikolas Rose, “The Death of the Social? Re-figuring the Territory of Government,” Economy & Society 25 (August, 1996), p. 325-356.return to text
    22. Michael Hardt and Antonio Negri, Labor of Dionysus: A Critique of the State Form (Minneapolis: University of Minnesota Press, 1994), p. 261; Hardt and Negri, Empire, p. 328.return to text
    23. Michael Hardt and Antonio Negri, Empire, p. 329; Gilles Deleuze, “Postscript on Control Societies,” in Gilles Deleuze, Negotiations Trans. Martin Joughin (New York: Columbia University Press, 1995), p. 177-182. return to text
    24. Michael Hardt and Antonio Negri, Labor of Dionysus, p. 261; Michael Hardt and Antonio Negri, Empire, p. 324; Michael Hardt, “The Withering of Civil Society,” in Eleanor Kaufman, et al., eds. Deleuze & Guattari: New Mappings in Politics, Philosophy, and Culture (Minneapolis: University of Minnesota Press, 1998).return to text
    25. Michael Hardt and Antonio Negri, Labor of Dionysus, p. 241.return to text
    26. Michael Hardt, “Whithering of Civil Society,” p. 32.return to text
    27. Ibid, citation removed.return to text
    28. Giorgio Agamben, The Coming Community, Trans. Michael Hardt, (Minneapolis: University of Minnesota Press, 1993), p. 1-2.return to text
    29. Ibid., p. 83.return to text
    30. Giorgio Agamben, Means without End: Notes on Politics, Trans. Vincenzo Binetti and Cesare Casarino (Minneapolis: University of Minnesota Press, 1996/2000), p. 58-59.return to text
    31. Giorgio Agamben, Coming Community, p. 82-83, 87.return to text
    32. For remixes of the Howard Dean scream, see: http://politicalhumor.about.com/b/2004/01/21/howard-dean-scream-remixes.htm; for remixes of “Don’t Tase me, Bro,” see: [formerly http://www.shoutmouth.com/index.php/news/The_Top_10_’Don’t_Tase_Me,_Bro!’_Remixes] return to text
    33. Here I am tracking Paul A. Passavant, “Yoo’s Law, Sovereignty, and Whatever,” Constellations 17 (2010), p. 553-554.return to text
    34. Jodi Dean, “The Networked Empire: Communicative Capitalism and the Hope for Politics,” in Paul A. Passavant and Jodi Dean, eds., Empire’s New Clothes: Reading Hardt and Negri (New York: Routledge, 2004). return to text
    35. Christian Marazzi, The Violence of Financial Capitalism (Los Angeles: Semiotext[e], 2010).return to text
    36. Franco “Bifo” Berardi, The Soul at Work: From Alienation to Autonomy (Los Angeles: Semiotext[e], 2009).return to text
    37. Zygmunt Bauman, Globalization: The Human Consequences (New York: Columbia University Press, 1998), p. 112.return to text
    38. Franco “Bifo” Berardi, Soul at Work, p. 76.return to text
    39. Mark Andrejevic, iSpy: Surveillance and Power in the Interactive Era (Lawrence: University of Kansas Press, 2007); Lynn Parramore, “Eli Pariser on the Future of the Internet,” Salon (8 October 2010); Eli Pariser, The Filter Bubble: What the Internet is Hiding from You (New York: Penguin, 2011).return to text
    40. Evan McKenzie, Privatopia (New Haven: Yale University Press, 1994); Peter Dreier, John Mollenkopf & Todd Swanstrom, Place Matters: Metropolitics for the Twenty-first Century, second revised ed. (Lawrence: University of Kansas Press, 2004).return to text
    41. Ibid., p. 99.return to text
    42. Ibid., p. 102.return to text
    43. Ibid., p. 100.return to text
    44. Consider also Jodi Dean’s discussion of enjoyment in her examples of Alec Baldwin’s character in the film Glengarry Glen Ross and George W. Bush’s 2003 State of the Union address in which Bush gives Americans permission to enjoy torture and extra-judicial killings as he clearly enjoyed alluding to how his regime engaged in these practices. See Jodi Dean, Žižek’s Politics (New York: Routledge, 2006), chap. 1.return to text
    45. Franco “Bifo” Berardi, Precarious Rhapsody: Semiocapitalism and the Pathologies of the Post-Alpha Generation (London: Minor Compositions, 2009).return to text
    46. Here I am reminded of Quentin Meillassoux’s observation that once we give up on trying to think the absolute because of the inaccessibility of the thing in itself, the consequences are only the loss of efforts to think the absolute, but not a loss of absolutes per se. That is, absolutes remain, but there is no demand for rational justification of them, so we witness the renaissance of a new religious fanaticism that is eased by the loss of proof and critique. See Quentin Meillassoux, After Finitude: An Essay on the Necessity of Contingency, Trans. Ray Brassier, (New York: Continuum, 2008). One might also consider in this regard my argument positing a logical discontinuity between Giorgio Agamben’s earlier work on the “coming community” of whatever being, and his theorization of the state in such works as Homo Sacer: Sovereign Power and Bare Life, Trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998); and Giorgio Agamben, State of Emergency, Trans. Kevin Attell (Chicago: University of Chicago Press, 2005); in Paul A. Passavant, “The Contradictory State of Giorgio Agamben,” Political Theory 35:2 (April, 2007), pp. 147-174. I suggest, however, that there could be a systemic or functional relation between them since whatever being might be understood as easing the emergence of a form of sovereignty that deposes popular sovereignty: see Paul A. Passavant, “Yoo’s Law, Sovereignty and Whatever,” p. 551.return to text
    47. David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2012), p. 63.return to text
    48. Ibid., p. 53.return to text
    49. Ibid., p. 69.return to text
    50. Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977-1978, Trans. Graham Burchell, Michel Senellart, ed. (New York: Palgrave MacMillan, 2007), p. 344 (economiste’s critique of state economic intervention due to the limits of knowledge); Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978-1979, Trans. Graham Burchell, Michel Senellart, ed. (New York: Palgrave MacMillan, 2008), p. 80 (neoliberalism’s anti-planning calls to mind the Physiocrats), p. 172 (Hayek’s neoliberalism is the opposite of a plan), p. 283 (the state must not intervene due to the limits of knowledge).return to text
    51. Richard Ericson and Kevin Haggerty, Policing the Risk Society (Toronto and Buffalo: University of Toronto Press, 1997).return to text
    52. Walter Berns, For Capital Punishment: Crime and the Morality of the Death Penalty (New York: Basic books, 1979), p. 153. Berns defends the death penalty as a way for the community to express outrage.return to text
    53. For discussions of the expressive aspects of current crime and punishment policies, see David Garland, Culture of Control, p. 110; Loic Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham: Duke University Press, 2009).return to text
    54. David Garland, Culture of Control, p. 47-48, 185.return to text
    55. Ibid., p. 184.return to text
    56. Slavoj Žižek, Violence, p. 80-81 (discussing violence as an “admission of impotence”).return to text
    57. Cf. John McCarthy and Mayer Zald, “Resource Mobilization and Social Movements: A Partial Theory,” American Journal of Sociology 82:6 (1977), p. 1212-1241.return to text
    58. Francis Fox Piven and Richard Cloward, Poor People’s Movements: Why They Succeed, How They Fail (New York: Vintage, 1978).return to text
    59. Aldon Morris, The Origins of the Civil Rights Movement (New York: The Free Press, 1984), p. 252.return to text
    60. Ibid., p. 259.return to text
    61. Ibid., p. 253.return to text
    62. Ibid., p. 269.return to text
    63. Ibid., p. 271.return to text
    64. Mary Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2000); Paul A. Passavant, No Escape: Freedom of Speech and the Paradox of Rights (New York: New York University Press, 2002), chap. 4.return to text
    65. Taylor Branch, Parting the Waters: America in the King Years, 1954-63 (New York: Simon and Schuster, 1988), p. 113.return to text
    66. Martin Luther King, Jr., “Behind the Selma March,” in A Testament of Hope: The Essential Writings of Martin Luther King, Jr. James Melvin Washington, ed. (New York: Harper and Row, 1986), p. 127.return to text
    67. Martin Luther King, Jr., “Love, Law, and Civil Disobedience,” in ibid., p. 52.return to text
    68. Paul A. Passavant, “Policing Protest in the Post-Fordist City,” Amsterdam Law Forum 2 (December, 2009).return to text
    69. Regarding New York City’s zero tolerance crime policies, see Christian Parenti, Lockdown America: Police and Prisons in the Age of Crisis (New York: Verso, 1999); Alex Vitale, City of Disorder: How the Quality of Life Campaign Transformed New York Politics (New York: New York University Press, 2008).return to text
    70. Paul A. Passavant, “Policing Protest in the Post-Fordist City,” p. 107-108.return to text
    71. Harry Kalven, Jr. The Negro and the First Amendment (Chicago: University of Chicago Press, 1965).return to text
    72. Terminiello v. Chicago 337 US 1 (1949); New York Times v. Sullivan 376 US 254 (1964); Edwards v. South Carolina 372 US 229 (1963).return to text
    73. Paul A. Passavant, “Policing Protest in the Post-Fordist City,” p. 106-112.return to text
    74. Alex Vitale, “From Negotiated Management to Command and Control: How the New York Police Department Polices Protests,” Policing & Society 15 (2005).return to text
    75. Daniel Jack Chasan and Christianne Walker, “Out of Control: Seattle’s Flawed Response to Protests Against the World Trade Organization,” American Civil Liberties Union of Washington (July, 2000).return to text
    76. Citizens’ Panel on WTO Operations, “Report to the Seattle City Council WTO Accountability Committee,” September 7, 2000, p. 20 http://www.seattle.gov/archive/wtocommittee/panel3final.pdf. The Report is now archived with the Seattle Municipal Archives, Legislative Department WTO Accountability Review Committee, Record Series Number 1802-K1, Clerk File 304446. Thanks to Deputy City Archivist Anne Frantilla for her assistance.return to text
    77. Bob Young and Jim Brunner, “City to Pay Protesters $250,000 to Settle WTO Suit,” The Seattle Times (17 January 2004); “Seattle to pay $1 million to settle WTO lawsuit,” KOMO News (2 April 2007). http://www.komonews.com/news/local/6830252.html return to text
    78. Jonathan Janiszewski, “Silence Enforced through Speech: Philadelphia and the 2000 Republican National Convention,” Temple Political & Civil Rights Law Review 12 (Fall, 2002), p. 121-140.return to text
    79. Deb Schwartz, “Philadelphia Law,” The Nation (3 September 2001), p. 5-6; Tristram Korten, “The Timoney School of Crowd Control: Miami’s Police Chief Made Headlines in Philadelphia—and they weren’t flattering,” Miami New Times (14 August 2003); Ron Goldwyn, “RNC Protesters Set to Sue City: Dozens are Charging their Civil Rights were Violated,” Philadelphia Daily News (26 July 2001), p. 5.return to text
    80. Gwen Shaffer, “Bully Puppet: The City’s puppetmakers hoped their civil suits would yield big settlements and reform. Thanks to a massive attack by the city’s high-powered lawyers, they’re getting neither,” The Philadelphia City Paper, (15 August 2002), p. 1. http://archives.citypaper.net/articles/2002-08-15/cover.shtml; Tristram Korten, “The Timoney School of Crowd Control.”return to text
    81. Tamara Lush, “FTAA Settlement Reached,” Miami New Times (4 October 2007).return to text
    82. New York Civil Liberties Union, Arresting Protest, New York: New York Civil Liberties Union, April 2003.return to text
    83. Center for Constitutional Rights. “Kunstler v. City of New York.” http://ccrjustice.org/ourcases/current-cases/kunstler-v-city-new-york return to text
    84. New York Civil Liberties Union, Rights and Wrongs at the RNC (New York: New York Civil Liberties Union, 2005).return to text
    85. Ibid.return to text
    86. Benjamin Weiser, “Judge Rules that Mass Arrests at a 2004 Protest were Illegal,” New York Times (1 October 2012). http://www.nytimes.com/2012/10/02/nyregion/protesters-arrests-during-2004-gop-convention-are-ruled-illegal.html?_r=0 return to text
    87. Colin Moynihan, “Ejected at ’04 Convention, a protester Gets $55,000,” New York Times (16 November 2008) http://www.nytimes.com/2008/11/16/nyregion/16settle.html; MacNamara et. al. v. City of New York, United States District Court Southern District of New York, (Opinion and Order by Judge Richard Sullivan certifying case as a class action), May 19, 2011 http://www.blhny.com/docs/RNC_Order Granting Class Cert. 5.19.11.pdf return to text
    88. Brief for the Plaintiffs, Goodman v. City of St. Paul, United States District Court of Minnesota, May 5, 2010, http://rnc08report.org/archive/1370.shtml; American Civil Liberties Union of Minnesota, “ACLU Plaintiffs Receive $27,000 for Police Raids during 2008 RNC,” June 2, 2011. [Formerly http://www.aclu-mn.org/home/news/acluplaintiffsrecieve27000.htm]; Sheila Regan, “Activists get $50,000 over RNC Raid,” Twin Cities Daily Planet (26 May 2011). http://www.tcdailyplanet.net/news/2011/05/26/activists-get-50000-settlement-over-rnc-raid; Randy Furst, “St. Paul settles suit with RNC Protester,” Star Tribune (6 February 2009). http://www.startribune.com/local/stpaul/39226432.html return to text
    89. Ryan Foley, “Taxpayers Off The Hook For GOP Convention Lawsuits,” Associated Press, September 4, 2008. https://www.commondreams.org/headline/2008/09/04 return to text
    90. “Three reviews expected of Pittsburgh G-20 Policing,” Pittsburgh Tribune-Review (8 October 2009). http://rnc08report.org/archive/1207.shtml return to text
    91. Andrew Bergman, “CPRB battles city over G-20 documents,” The Pitt News (30 November 2010). http://www.pittnews.com/news/article_655fb52c-df1d-55ee-9035-e009f0f2c0fc.html return to text
    92. American Civil Liberties Union of Pennsylvania, “ACLU Sues City of Pittsburg Over G-20 Mass Arrests.” [Formerly http://www.aclupa.org/issues/freespeech/g20/index.htm] return to text
    93. “City of Pittsburgh Settles G-20 Lawsuits,” November 14, 2012. [Formerly http://www.aclupa.org/legal/legaldocket/pipervcityofpitsburghetal.htm] return to text
    94. Joe Coscarelli, “Preemptive Occupy Wall Street Arrests Cost City $50,000,” New York Magazine Daily Intelligencer (9 November 2012), http://nymag.com/daily/intelligencer/2012/11/preemptive-occupy-wall-street-arrests-cost-city-50000.html; Joe Coscarelli, “Occupy Wall Street Still Kicking in Court,” New York Magazine Daily Intelligencer (16 May 2013), http://nymag.com/daily/intelligencer/2013/05/occupy-wall-street-still-kicking-in-court.html; Adam Martin, “NYPD Raid on Occupy Wall Street Just Cost the City $350,000,” New York Magazine Daily Intelligencer (9 April 2013). http://nymag.com/daily/intelligencer/2013/04/nypd-occupy-raid-just-cost-the-city-350000.html return to text
    95. Alex Vitale, “From Negotiated Management to Command and Control.“return to text
    96. Ibid.return to text
    97. Therefore, police are also doing something more than simply “showcasing security” when they use “pop-up” plastic mesh or drive scooters into crowds since this creates disorder. These methods do, however, showcase aggression. See Greg Martin, “Showcasing security: the politics of policing space at the 2007 Sydney APEC meeting,” Policing & Society 21: 1 (March, 2011), p. 27-48.return to text
    98. David Garland, “Penal Excess and Surplus Meaning: Public Torture Lynchings in the Twentieth-Century America,” Law and Society Review 39:4 (2005), p. 793-834.return to text
    99. Mosi Secret, “Police, Too, Release Videos of Arrests on Bridge,” New York Times (2 October 2011). http://www.nytimes.com/2011/10/03/nyregion/police-too-release-videos-of-arrests-on-bridge.html return to text
    100. “NY Law Enforcement Caught Doctoring Video of RNC Arrests,” Democracy Now!, April 14, 2005. http://www.democracynow.org/2005/4/14/ny_law_enforcement_caught_doctoring_video; Jim Dwyer, “Videos Challenge Accounts of Convention Unrest,” New York Times (12 April 2005). http://www.nytimes.com/2005/04/12/nyregion/12video.html return to text
    101. All comment thread quotes to the photo of Liz Nichols being pepper sprayed by Portland police appear online: “Occupy Portland: How photojournalist Randy L. Rasmussen captured that image.” The Oregonian (November 18, 2011). http://www.oregonlive.com/multimedia/index.ssf/2011/11/occupy_portland_how_photojourn.html return to text
    102. Ibid.return to text
    103. This comment thread is available online: USLAWdotcom. “NYPD Police Pepper Spray Occupy Wall Street Protesters (Anthony Balogna).” YouTube. http://www.youtube.com/watch?v=TZ05rWx1pig return to text
    104. “Occupy Portland,” The Oregonian, http://www.oregonlive.com/multimedia/index.ssf/2011/11/occupy_portland_how_photojourn.html return to text