Dancing with Jefferson

Wednesday, May 18, 2011

What better way to celebrate the 265th birthday of Thomas Jefferson than dancing around his statue?

That was apparently the thinking of Mary Brooke Oberwetter as she and 17 of her friends entered the Jefferson Memorial shortly before midnight on April 12, 2008. “In the individualist spirit for which Jefferson is known, the dancers danced for the most part by themselves in place, each listening to his or her music on headphones,” according to Oberwetter.

Oberwetter saw this free-spirited dance as an ideal way to celebrate and honor America’s third president. The U.S. Park Police thought differently.

They ordered the dancers to disperse, but Oberwetter kept dancing and demanded to know why they had the authority to stop her. In short order, she was placed under arrest for “interfering with an agency function.” Oberwetter was determined to fight the charges, but the case was dropped when the park police did not pursue prosecution.

The night’s festivities became part of the public record when Oberwetter decided to sue the park service for violation of her freedom of speech and assembly. The U.S. District Court dismissed her complaint for failing to state a claim, which led to the case before the U.S. Circuit Court of Appeals for the District of Columbia. Yesterday, that court also ruled against Oberwetter.

The appellate court concluded in Oberwetter v. Hilliard that Oberwetter’s informal dance group was in violation of regulations that seek to limit disruptive conduct at national memorials.

“Although silent, Oberwetter’s dancing was a conspicuous expressive act with the propensity to draw onlookers.” True, it occurred close to midnight on a weekend, making it less likely that a crowd would gather, Circuit Judge Thomas Griffith wrote, “but the conduct is nonetheless prohibited because it stands out as a type of performance, creating its own center of attention and distracting from the atmosphere of solemn commemoration that the regulations are designed to preserve.”

The court analyzed Oberwetter’s complaint by applying the public-forum doctrine, which categorizes government property for the purposes of free speech. The court concluded that the monument is a non-public forum, a piece of property that is not traditionally viewed as a place for public communication or the exchange of ideas.

The court concluded that the monument is a place where people come to stand reverently and not to express themselves.

“National memorials are places of public commemoration, not freewheeling forums for open expression, unless the government may reserve them for purposes that preclude expressive activity,” Griffith wrote.

This was a traditional analysis and the outcome was not necessarily surprising. But still, it does seem a little incongruous to shut down such enthusiastic free speech beneath the statue of a man whose life was the essence of free expression.

The sight of 18 people bopping silently around Jefferson may have unnerved the park police and they took action. This litigation could have been avoided entirely if the park police saw this event for what it was: a singular celebration of a singular man. The proper response at midnight on Jefferson’s birthday is just to smile.

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