The words of Thomas Jefferson, some written more than 200 years ago, have shaped American ideals. Today, many of these impressive, stirring words adorn the interior walls of his memorial. The Thomas Jefferson Memorial stands as a symbol of liberty and endures as a site for reflection and inspiration for all citizens of the United States and the world.
Those words are on the homepage of the National Park Service's website for the Jefferson Memorial. But does the memorial stand "as a symbol of liberty and endure as a site for reflection and inspiration for all citizens of the United States and the world"? Some might wonder following an incident this past Saturday at the memorial in which U.S. Park Police brusquely -- some might say excessively, what with the use of chokeholds and knees pinning heads to the memorial's floor -- arrested a number of visitors in the memorial for ... quietly dancing.
Thomas Jefferson, our country's third president, valued liberty highly, as a review of his quotations attests:
"I would rather be exposed to the inconveniencies attending too much liberty than to those attending too small a degree of it."
"The boisterous sea of liberty is never without a wave."
"..I have sworn upon the altar of god eternal hostility against every form of tyranny over the mind of man."
That last entry comes from an inscription within the memorial, an irony that can't be escaped in the wake of the arrests.
When did dancing become a sign of protest, and when was it outlawed in the memorial? How do you measure reasonable force vs. excessive force when police are arresting those behind passive acts of civil disobedience? Would those questions, which might come to mind after watching the following video, have been moot if the Park Police had simply ignored the dancers?
Now, the dancing was not spontaneous, and likely had its roots in a similar incident in 2008 when Mary Oberwetter was arrested in the memorial for dancing in celebration of Thomas Jefferson's birthday.
Ms. Oberwetter's lawsuit against the National Park Service, for a violation of her First Amendment rights, was initially dismissed by a federal judge and her appeal of that also failed, on this past May 17. In its ruling, the U.S. Court of Appeals for the D.C. Circuit held that the Jefferson Memorial should have a “solemn atmosphere" and that silently dancing was an inappropriate form of expression there.
Furthermore, the appellate judges agreed with the lower court that the interior of the open-air memorial is "not a public forum," and so any demonstrators must first obtain a permit. Demonstrations that require permits in the Park Service's National Capital region are defined as "picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. [The] term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers."
Against those regulations, the appellate court wrote:
Although silent, Oberwetter’s dancing was a conspicuous expressive act with a propensity to draw onlookers. True, it occurred close to midnight on a weekend, making it less likely that a crowd would gather. But the question is not whether her dancing was likely to attract attention at that particular time. As with the other prohibited activities of “picketing, speechmaking, marching, [and] holding vigils or religious services,” expressive dancing might not draw an audience when nobody is around. 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.
Furthermore, the judges added:
National memorials are places of public commemoration, not freewheeling forums for open expression, and thus the government may reserve them for purposes that preclude expressive activity. Oberwetter points out that the Jefferson Memorial is located within the National Park system, and that public parks are quintessential examples of traditional public forums. Even so, we have recognized that our country’s many national parks are too vast and variegated to be painted with a single brush for purposes of forum analysis. “Presumably, many national parks include areas—even large areas, such as a vast wilderness preserve—which never have been dedicated to free expression and public assembly, would be clearly incompatible with such use, and would therefore be classified as nonpublic forums.”.... 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.
What would Thomas Jefferson think?