(CN) – Martha Reeves may have beckoned us all to come dancing in the street, but don’t take that revelry to Jefferson Memorial. The D.C. Circuit has upheld a lower court’s decision that spontaneous dancing at the memorial is tantamount to a demonstration, and prohibited with out a permit.
The case stemmed from the April 2008 arrest of Mary Brooke Oberwetter, who had gathered with 17 friends shortly before midnight on the eve of Thomas Jefferson’s 265th birthday for what she later described as :silent express dancing” intended to “celebrate and honor the former President” and author of the U.S. Declaration of Independence.
“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,” the original complaint said.
The celebrants intended to film the dance and post it on YouTube. Instead they wound up posting a video of Oberwetter’s arrest after she challenged Park Police following their order that the group disperse.
In her original lawsuit against Park Police Office Kenneth Hilliard, Oberwetter said she demanded to know what law she and her friends were violating. She said as she continued to demand an answer to her question, Hilliard “Used more force than was necessary… ripping apart her earbud, showing her against a pillar, and violently twisting her arm.”
The Park Police then held her for five hours before citing her for interfering with an agency function. Two days later the Park Police visited her home with another summons, this one for “demonstrating without a permit.”
Oberwetter filed suit in federal court in the District of Columbia charging that her First Amendment rights to free speech and assembly had been violated.
The trial court dismissed her complaint, holding that she had violated “the reasonable regulations that govern the Jefferson Memorial, a nonpublic forum reserved for the tranquil commemoration of Mr. Jefferson’s legacy.”
Writing for the three-judge appellate panel that upheld that decision, Judge Thomas B. Griffith said that while it was true Oberwetter’s gathering occurred “close to midnight on a weekend, making it less likely that a crowd would gather… 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 also said the Park Service has a right to regulate conduct at the memorial, and that its rules are reasonable and “preserve the Memorial’s solemn atmosphere.”
Speaking directly to Oberwetter’s First Amendment claim, the appellate panel deemed the Jefferson Memorial to be a “non-public forum” that encompasses government property that is “not by tradition or designation a forum for public communication.”
“Outside the Jefferson Memorial, of course, Oberwetter and her friends have always been free to dance to their hearts’ content,” Griffith wrote.
In a footnote within the ruling, the court additionally makes a historical if not judicial point, noting that, “Mr. Jefferson is on record discouraging celebration of his birthday.”
“On Mr. Jefferson’s accession to the Presidency [visitors] had waited for him, requesting to be informed, which was his birthday, as they wished to celebrate it with proper respect,” the footnote recalled.
“‘The only birthday I ever commemorate … is that of our Independence, the Fourth of July,'” the court quotes Jefferson as saying.