Five people were arrested on Saturday for dancing at the Jefferson Memorial in Washington, D.C.
What? Arrested for dancing?! Is this America? When did the Taliban take over? Try to keep your knee from jerking and read on:
The dancers were inspired by a recent U.S. Court of Appeals decision in a case brought by Brooke Oberwetter, a woman who was arrested, charged with a misdemeanor for dancing at the memorial in 2008 as part of a flash-mob event, and then released after being held for a couple of hours.
Oberwetter, the only one arrested among a group of young people who danced in the memorial’s rotunda to music in their headphones as if participating in a guerrilla-marketing scheme for the iPod, argued in court that her arrest was a violation of her First Amendment right to free speech.
Oberwetter lost her case because the court agreed that the U.S. Park Service had the responsibility to maintain an atmosphere of reverence and tranquil reflection at the monument and that dancing was one among many behaviors that didn’t jibe with the vibe. She appealed and lost again last month.
Saturday’s boogying protestors included well-known activists (or rabble-rousers, if you prefer) like Code Pink founder Medea Benjamin and Iraq War veteran and radio talk-show host Adam Kokesh. These celebrity thorns-in-the-side-of-the-establishment danced in Footloose-ish solidarity with Oberwetter and her free-speech mission.
So, is dancing free speech? Yes, of course. Speech is defined by the courts as applying to all sorts of expression.
But in the Oberwetter case, the court didn’t say that her dancing wasn’t speech; it ruled that the memorial is not a public space: “There is no question that she had the right to dance…. The question… is whether she had the right to perform her dance inside the Jefferson Memorial,” wrote Court of Appeals Justice Thomas Griffith in the decision.
Griffith’s determination relied on the “public forum doctrine,” which divides public spaces into categories based on use.
A traditional public forum is one devoted by government designation or long-standing tradition to assembly and debate. If the Jefferson Memorial were such a space, the dancing would’ve been within the bounds of acceptable behavior—unless it was the Macarena, which, as we all know, is now illegal everywhere.
Next is the “limited public forum,” a space temporarily designated by the state as an area for expressive activity. And third is the “non-public forum,” where, according to a precedent cited in Griffith’s decision, the government “may reserve the forum for its intended purposes… as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”Sound reasonable? Imagine if we didn’t have regulation of any public spaces. People are obnoxious. We’d turn the Jefferson Memorial into a free-for-all in no time. Allow random dancing and, next thing you know, it’s competing b-boy crews with ghetto blasters and flattened refrigerator boxes. Sorry, in my mind it was 1984 for a second, but you get the point: preachers, hot-dog stands, skateboards, graffiti, smokers, petitioners, invisible dogs on leashes—all your favorite public mishegas in a big public dance. Yuc
Can’t they just do their unlimited-freedom-of-expression thing at burning Man, where Grandma and the kids don’t have to look at all that freedom hanging out all over the place?
No, the protestors insist, the Jefferson Memorial is the perfect place to act up without a permit. The 2008 flash-mob action took place at the memorial on Jefferson’s birthday precisely because the protestors / dancers wanted to make a point about what kind of space best functions as a tribute to Jefferson.
Jefferson was a big fan of rebellion: “The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive,” he wrote. “It will often be exercised when wrong, but better so than not to be exercised at all.” Jefferson’s ghost is probably out there in the rotunda doing the Dougie right now in solidarity with Ms. Oberwetter.
But does that mean that a memorial reserved as a solemn space where attention-drawing theatrics are verboten is such a draconian thing? The reason the memorial is designated as a place for reflection is not so much that our evil overlords want to tame Jefferson’s legacy, but rather because Jefferson is dead; monuments to dead people rarely pull double-duty as nightclubs.
A compromise here would be for the protestors to do the hard work of building a new, more freewheeling and complex Jefferson Memorial as an alternative to the current simple, boring, calm one. That would take fundraising, location-seeking, working with government agencies, applying for permits—yawn. That doesn’t sound like much fun, does it?
You know what else isn’t fun? Being violently slammed to the ground and put in a chokehold. Although we may have differences of opinion on whether dancing or any other type of demonstration should be allowed at the Jefferson Memorial, we can all agree that cops don’t have to act like bullies when arresting harmless people. Park police were overzealous in their arrest of Kokesh, which you can see in videos posted by protestors online. If you watch them over and over again to music (I recommend Strauss’ “Blue Danube Waltz” or “Police Truck” by The Dead Kennedys), it looks like a macabre dance. And if people can’t do the funky freestyle at the memorial, let’s hope the cops can’t get away with dancing on people’s heads.