A federal appeals court in Washington today said expressive dancing is prohibited inside the Jefferson Memorial in a decision that upheld the dismissal of a suit alleging government suppression of First Amendment rights.
The U.S. Court of Appeals for the D.C. Circuit said expressive dancing “falls into the spectrum” of prohibited activities—including demonstrations, picketing and speechmaking—at the memorial. The rules, the court said, ban conduct that has the “propensity” to draw onlookers. The court's ruling is here.
The plaintiff, Mary Brooke Oberwetter, who was arrested with other dancers in April 2008, said federal regulations that govern the use of the memorial do not prohibit silent dance. Oberwetter and fellow dancers said they was honoring Jefferson on the eve of his 265th birthday when the authorities interrupted. Police said Oberwetter twice refused to stop dancing.
“Although silent, Oberwetter’s dancing was a conspicuous expressive act with a propensity to draw onlookers,” Judge Thomas Griffith wrote for the appeals court. Judges Judith Rogers and David Tatel joined the opinion.
That the dance happened near midnight on a weekend--making it less likely a crowd would form--does not make it lawful, the court said.
Oberwetter’s conduct, the court said, is prohibited “because it stands out as a type of performance, creating its own center of attention and distracting from the atmosphere of solemn commemoration” the regulations are intended to preserve.
"Outside the Jefferson Memorial, of course, Oberwetter and her friends have always been free to dance to their hearts’ content," Griffith said.
In a footnote, Griffith said in the court's ruling that Jefferson is “on record discouraging the celebration of his birthday.” The judge quoted Jefferson saying the only birthday he ever commemorates is the Fourth of July.
Oberwetter’s lawyer, Alan Gura of Alexandria, Va.’s Gura & Possessky, called the appeals court decision a disappointment and said he is reviewing options. Assistant U.S. Attorney Harry Roback argued for the U.S. Park Police.