Yesterday, the D.C. Circuit issued a stern lesson in freedom of expression to a woman who figured that a late-night dancing display at the Jefferson Memorial was the best way to honor the Founding Father’s birth.
Mary Brooke Oberwetter is a big fan of Thomas Jefferson. I’m partial to John Adams and Alexander Hamilton, but Jefferson is okay by me, too.
Anyhow, at a quarter to midnight on April 12, 2008 — the eve of Jefferson’s 265th birthday — Oberwetter and 17 of her closest friends entered the Jefferson Memorial to “celebrate and honor the former President … by ushering in his birthday with silent dance.”
According to Oberwetter, the dancing expressed admiration for Jefferson’s political legacy and “individualist spirit.” For the most part, the dancers danced by themselves, listening to music on their headphones.
Seems harmless enough.
However, National Park Service regulations prohibit “demonstrations and special events” at such sites without a permit.
Oberwetter and her friends did not have a permit, so several U.S. Park Police officers — who you can bet only wanted a quiet end to their shift — ordered the dancers to disperse.
Instead of complying with the order, Oberwetter demanded that Officer Kenneth Hilliard provide a lawful reason why she should stop her silent dancing and leave.
Now, getting huffy with a police officer is always a bad idea. Oberwetter should have known better, but she didn’t.
Oberwetter allegedly refused to comply with Officer Hilliard’s order when he proved less than responsive to her legal questions. Not taking kindly to Oberwetter’s intransigence, Hilliard arrested her for interfering with his duties.
Further, Oberwetter claims that Hilliard handled her roughly when taking her into custody, alleging that the officer ripped apart her earbud, shoved her against a pillar, and “violently” twisted her arm.
After five hours of processing, Oberwetter was released and cited for “interfering with an agency function,” and “demonstrating without a permit” in violation of National Park Service Regulations.
The charges were later dropped, but Oberwetter predictably sued the National Park Service and Officer Hilliard for excessive force and violations of her First Amendment rights to free speech.
The U.S. District Court for the District of Columbia dismissed Oberwetter’s complaint.
Tuesday, the D.C. Circuit affirmed the dismissal in a decision that must warm that heart of all those with an instinctive dislike for silent dancers, mimes and other annoying street performers.
As to Oberwetter’s central argument that the First Amendment protects her right to engage in silent expressive dancing inside the Jefferson Memorial, the D.C. Circuit said that having “created and maintained the Memorial as a commemorative site, the government is under no obligation to open it up as a stage for the roving dance troupes of the world — even those celebrating Mr. Jefferson.”
The court recognized that the interior spaces of national memorials have traditionally not been used for public assembly and therefore have been treated as non-public forums for First Amendment purposes.
“In creating and maintaining the Jefferson Memorial in particular, the government has dedicated a space with a solemn commemorative purpose that is incompatible with the full range of free expression that is permitted in public forums,” the court said.
This conclusion likewise undercut Oberwetter’s constitutional claims against Officer Hilliard in his individual capacity.
“Hilliard’s alleged conduct did not violate Oberwetter’s clearly established constitutional rights,” the court said. “She had no First Amendment right to stage an unlawful performance inside the Jefferson Memorial, and in doing so created the cause for her own arrest.”
The court expressed a similar lack of sympathy regarding Oberwetter’s excessive force claims.
The court said it “was not clearly unreasonable for Hilliard to take decisive action to subdue Oberwetter quickly and forcefully, thereby reducing the risk of interference or escape. Given that some force may have appeared reasonably necessary, Hilliard’s alleged actions were not markedly different from what we would expect in the course of a routine arrest.” (Oberwetter v. Hilliard)
— Pat Murphy