An overreliance on the language of First Amendment rights treats the state—the Trumpian, corporate, white supremacist state—as an interlocutor, instead of as an enemy. When we call upon the government to recognize our right to peaceful assembly, we appeal to the democratic conscience of the state. “A conscience,” as British cultural critic John Berger noted in a 1968 essay in the journal International Socialism, “which is very unlikely to exist.”

Berger highlighted a conflict inherent to the sort of public demonstrations that First Amendment rights aim to defend: “If the State authority is open to democratic influence, the demonstration will hardly be necessary; if it is not, it is unlikely to be influenced by an empty show of force containing no real threat.” It’s safe to say we live in a moment when it is clear and correct to distrust the state’s openness to democratic influence.

Berger did not reject the significance of legal protests—which manage to show, in their peaceful numbers, the potential for revolutionary action (if very rarely)—but he saw their limitations insofar as they are empty shows of force unlikely to influence the state. A rights discourse, which is only useful to defend this sort of protest, will thus echo its main limitation: defense of that which is no real threat to the powers that be.