So holds the Oberwetter v. Hilliard. The court concluded that
- the Jefferson Memorial qualified as a “nonpublic forum” for First Amendment purposes, so that restrictions on speech there were constitutional if they were viewpoint-neutral and reasonable, and
- the limitation on conduct in the Memorial “which involve[s] the communication or expression … [and] has the effect, intent or propensity to draw a crowd or onlookers” was indeed viewpoint-neutral and reasonable.
Sounds right to me.
ArthurKirkland says:
What doesn’t sound right is a shove reportedly effected before the officer had determined whether the citizen had a permit or similar entitlement to be there. For that, discipline, liability for damages and perhaps a criminal charge seem worthy of consideration.
January 27, 2010, 7:38 pmShelbyC says:
Really? Isn’t there a heckler’s veto problem there?
January 27, 2010, 7:44 pmPintler says:
What would Jefferson do? Inscribed around the memorial (on the inside, above the columns) is a quote of his ‘I have sworn eternal hostility against every form of tyranny over the mind of man’[1]. Somehow the incident in question seems at odds with that.
[1]While I have always loved the quote, just now I googled to make sure I got the wording exactly right, and that search sure brought up a disreputable looking list of sites.
January 27, 2010, 8:24 pmOren says:
If this is an example of the tyranny against which Jefferson fought, I daresay that he was wasting his time.
January 27, 2010, 8:44 pmPintler says:
@Oren: :-)
Of course, what was the big deal about a sales tax on tea, anyway? It was a very odd revolution.
January 27, 2010, 9:02 pmjccamp says:
“For that, discipline, liability for damages and perhaps a criminal charge seem worthy of consideration.”
The decision specifically rejects the plaintiff’s claims of excessive force, and found that the officer acted reasonably.
January 27, 2010, 9:28 pmOren says:
Even worse for that theory, of course, is that even if the Colonies had representation in Parliament in the same proportion as Englishmen back home, the Stamp Act (and the rest of the Intolerable Acts) would still have easily passed.
No, I think there are deeper principles of liberty than a desire to dance in front of a statue — ones that deserve our attention far more than this farcical affair.
January 27, 2010, 9:48 pmTomHynes says:
It was a bunch of libertarians from Reason magazine:
http://reason.com/blog/2008/04/14/urban-dance-squad
January 27, 2010, 9:49 pmjuris imprudent says:
I love that the officer could not tell her what law she was violating. Isn’t it a bit unusual for police to have a general authority to order people about? I mean, unusual in a free country that is.
January 27, 2010, 9:51 pmNickM says:
I believe the actual form of the quotation ringing the Memorial is “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man”.
I’ll take their word for it, although I’ve seen it referred to other places as being “I have sworn upon the altar of Almighty God eternal hostility against every form of tyranny over the mind of man”.
I guess this means I need to go back and visit it again to see for myself.
Nick
January 27, 2010, 9:54 pmSuperSkeptic says:
Sounds wrong to me.
“…Officer Kenneth Hilliard of the United States Park Police ordered
her to stop dancing and leave the Jefferson Memorial. She refused, and asked Officer Hilliard the reason for his command. He did not answer, and instead arrested Oberwetter for demonstrating without a permit and interfering with an agency function.”
1) “demonstrating without a permit”
The First Amendment to the United States Constitution provides: “Congress shall make no law…abridging…the right of the people to peacefully assemble…” So much for that…
2) “interfering with an agency function”
What function? Standing around idly with a weapon in a uniform? I call bs.
Sounds wrong to me.
January 27, 2010, 10:06 pmSuperSkeptic says:
THE JEFFERSON MEMORIAL = “nonpublic forum” where speech may be “infringed” (remember the First Amendment). Really? Must be someone’s private property…
If people might look at you then you cannot say it. Some freedom of speech we got there…
Again, sounds wrong to me.
January 27, 2010, 10:19 pmRicardo says:
Incidentally, when I was still in high school we took a class trip to the Vietnam Memorial in Washington, D.C. One of the activities was that anyone in the class who had some kind of personal or family connection to someone who fought or died in that war could share an anecdote or story and place an item of remembrance at the memorial.
Anyway, after a few minutes, a park ranger or police officer approached the teacher and initially said that religious observances were not allowed with prior authorization. She countered in that the purpose of our meeting was entirely secular and was part of a school trip but the cop was very firm that any meeting at all at the memorial needed prior approval along with a permit from the Park Service.
That always struck me as pretty ridiculous and overbearing even if it was constitutional. As I recall, these Jefferson Memorial dancers were doing their thing at night when that memorial was practically empty and there were unlikely to be very many onlookers. But this is the same city where you can be taken into custody for munching on snacks in the Metro so common sense doesn’t always rule the day among the authorities.
January 27, 2010, 10:23 pmjccamp says:
SuperSkeptic –
from the decision:
“The Park Service’s stated goal in prohibiting demonstrations at these four monuments [Washington Monument, Jefferson Memorial, Lincoln Memorial, Vietnam Memorial] is “protecting legitimate security and park value interests, including the maintenance of an atmosphere of calm, tranquility, and reverence in the vicinity of [these] memorials.”
Non-public forum?
“And the physical characteristics of the Memorial’s interior indicate that it is a nonpublic forum. It is physically distinguishable from the surrounding parkland: an individual must affirmatively decide to visit the interior of the Jefferson Memorial. The visitor must step off of a path, ascend forty steps, and traverse a portico — passing a sign requesting “Quiet Respect” — before entering the Memorial’s interior. …the pedestrian is inevitably aware that in moving from the parkland to the interior of the Memorial he or she “ha[s] entered some special type of enclave.” A pedestrian simply does not “happen” upon the interior of the Memorial.
Legitimate government interest?
“As discussed above, the purpose of the Memorial is to publicize Thomas Jefferson’s legacy, so that critics and supporters alike may contemplate his place in history. The Park Service prohibits all demonstrations in the interior of the Jefferson Memorial, in order to maintain an “an atmosphere of calm, tranquility, and reverence,” …and thereby fulfill this purpose. The D.C. Circuit has recognized these interests as legitimate goals of speech regulation at our national memorials.”
“If people might look at you then you cannot say it.”
No, if people looking at you might disturb the purposes of the Memorial, then you have to take your show somewhere else…like the sidewalk out front.
Ricardo -
I think it plain from this decision (Oberwetter) the Park Service has a no tolerance policy, out of (probably valid) concern that any exception – however seemingly innocuous – would open the door to Code Pink sacrificing live chickens or something.
January 27, 2010, 10:47 pmjccamp says:
juris imprudent –
“I love that the officer could not tell her what law she was violating.”
I don’t think that was established anywhere, except in the plaintiff’s allegations, which were rejected by the court. She didn’t claim that the officer could not tell her, but that he did not tell her…until after she was arrested. There is no requirement incumbent upon officers to explain the law to people, only to explain actions and consequences. In this case, the officer told the woman to stop dancing or suffer arrest. She said – to the effect – explain to me what the law is or I won’t stop. Situations such as this are not negotiating sessions, wherein officers must convince people to obey the law. Officer have the authority to enforce a legal order, as in this case. I guess the lady perhaps could have stopped dancing and then asked for an explanation, not insisted on an explanation before complying.
The Park Service added new charges several days later, after they probably got wind of some impending lawsuit, complaint or the like.
The original charge was “Violating the lawful order of a government employee or agent authorized to maintain order and control public access and movement…where the control of public movement and activities is necessary to maintain order and public safety.”
January 27, 2010, 11:07 pmArthurKirkland says:
The court’s discussion of excessive force ignored the initial shove, so far as I can recall.
Perhaps a superior court would do a better job.
January 27, 2010, 11:11 pmSuperSkeptic says:
Jccamp, I don’t know what you’re trying to say. I read the opinion too. It is patently absurd to argue that the Jefferson Memorial is in any way “non-public”. An individual must “affirmatively decide” to walk on the sidewalk too. I’m not persuaded. I also emphatically disagree with the idea that a “Legitimate government interest” (as determined by the government, mind you) trumps “Congress…shall not infringe” (a limitation on the government, mind you) – the First Amendment is not conditional. I understand how and why this happened, as well as how others (including judges) can rationalize it, but that doesn’t make it right.
Hand at the level of your eye; no sudden, furtive movements; shhh….
Awesome. Let freedom ring!
January 27, 2010, 11:12 pmSuperSkeptic says:
(emphasis added)
And this is the whole problem in a nut-shell, which you fail to see. This isn’t about “actions and consequences” or “negotiations”. He wanted to stop her, period; and the law is happy to oblige a post-hoc rationalization for him.
January 27, 2010, 11:19 pmjccamp says:
“It is patently absurd to argue that the Jefferson Memorial is in any way “non-public”.
Well, no, it’s not. Fortunately or unfortunately, the DC Circuit of Appeals says so. You don’t have to agree. But it’s not ridiculous.
“…the First Amendment is not conditional…”
Sure it is. The conditions are quite limited in number and scope, but there are very legitimate restraints on unfettered speech.
“Hand at the level of your eye; no sudden, furtive movements; shhh….”
Which begs the question, would not the ‘expressive dancing’ in the adjacent parkland or on the sidewalk sufficed, when trying to anticipate and prevent some future ‘performance art’ disruptive of the setting? How allowing those whack-jobs with “Death to Queers” placards (at military funerals) into the Vietnam Memorial? Would that fit too? Where would you draw the line?
“Awesome. Let freedom ring!”
A little hyperbole, mayhap? All because some free spirit wants to put some tunes on the iPod and trip the light fantastic in the moonlight at the Jefferson Memorial?
“I’m sorry Madam, but you’ll have to take the talent show outside.”
January 27, 2010, 11:34 pmRicardo says:
Sure, and like other zero tolerance policies, like expelling schoolchildren for carrying nail clippers or aspirin to school or arresting someone for eating a candybar on the Metro, it results in absurd overreaction. It does seem a bit questionable that silently dancing for at most a few minutes at a time when there are few visitors to the memorial counts as a “demonstration” but aside from that, I have nothing to say on the Constitutional issues. I just think the policy is stupid as is the policy that apparently prevents a small group of people from having a brief remembrance at a war memorial whose actual purpose is to honor and remember those who fought.
January 27, 2010, 11:39 pmjccamp says:
Ricardo –
In either case, you would be creating a precedent for allowing such demonstrations. In the latter, you would be judging content. If you find the regulations and enforcement silly, blame those who would take advantage and do some theatre-of-the-absurd kind of a thing to protest the cause-de-jour, and show no respect the setting of the four (only these 4) specified places where no (permitted or not) demonstrations are allowed. If schoolchildren were allowed a silent memorial gathering, how long would it be until the ACLU was in court demanding equal access for PETA to march naked or some thing similar?
I agree if you lament that the regulations and enforcement are needed. But I think that they are, unfortunately.
January 27, 2010, 11:49 pmSuperSkeptic says:
jjcamp,
I challenged the rationale, you haven’t defended it, just reasserted that it “says so” – I know it says so. And alas the “conditions” are not “limited in number and scope”, they are myriad and pervasive. They are also illegitimate. There is no reason people should fear their government in airports and at national monuments (let’s not get into the streets – is that a public forum?). I would let those “whack-jobs” speak (or at least prevent Congress from abridging their speech, how’s that for now?). If you are comfortable with the way things are (and the way they’re trending) I would not expect you to be concerned.
January 27, 2010, 11:57 pmRicardo says:
jccamp, you seem fixated on naked demonstrations or crazies carrying placards: these can be banned pretty easily with uncontroversial content-neutral regulations, though. I’m sure even iPods could be banned from national parks. My objection is that rather than explicitly banning dancing or quiet meetings of some kind, the government instead lumps all these in with a ban on “demonstrations.”
This has the effect of turning certain memorials into an experience similar to visiting Tiananmen Square (which I’ve done), where one has to worry that doing anything that could be perceived by anybody as slightly out of the ordinary will earn a visit from the authorities.
January 28, 2010, 12:03 amSuperSkeptic says:
Oh – if you haven’t read it yet, make sure you check out the reflexive spousal abuse rationale of “officer didn’t leave a mark so it’s okay” discussion towards the end.
Here’s a taste:
“Shoving Oberwetter against the wall allowed Officer Hilliard to subdue an individual that he reasonably believed might try to resist arrest or escape.” (emphasis added).
January 28, 2010, 12:03 amjccamp says:
“He wanted to stop her…”
No, he probably wanted nothing even remotely close. But it is his job. He didn’t make the regulations and rules. He merely is paid and expected to enforce them.
People were dancing inside the Jefferson Memorial in contravention of the rules. He told the woman to stop. She said ‘No.’ She got arrested. This is hardly a constitutional crisis.
Or do you really think he had some personal feeling in the matter? Did he single her out, from all the people in the world, and decide to violate her rights? “Wadda you want to do tonight, Harry?” “I dunno, let’s wander down to the Jefferson, find some hippie chick with her impromptu dance troupe and arrest them. We can fabricate the charges later.”
Get real.
January 28, 2010, 12:05 amjccamp says:
“They are also illegitimate.”
No, they’re not. You don’t like them. I get that. But, by definition, they’re lawful and legal. We disagree as to the morality, perhaps.
“I would let those “whack-jobs” speak”
That wasn’t my question. Would you limit the setting (time or place) in which the whack-jobs can wave their (hateful) signs? If there are no conditions, then presumably, people can picket with their choice of message whenever and wherever they choose, is that your position? If it not your position, then we are merely disagreeing as to the degree of conditional control upon speech.
“If you are comfortable with the way things are (and the way they’re trending) I would not expect you to be concerned.”
Actually, I’m not (concerned), especially based on this case. So we agree on that.
January 28, 2010, 12:16 amSuperSkeptic says:
Unlike the judge, I don’t know and I’m not saying what he “reasonably believed” – or was “feeling” or thinking – at the time. It is an incontestable fact that he wanted to stop her, I do not think he even denied it – and he did it. We disagree, and that’s fine. I respect your right to say it – even at the Jefferson Memorial.
January 28, 2010, 12:21 amSuperSkeptic says:
No.
January 28, 2010, 12:23 amjccamp says:
Ricardo -
“these can be banned pretty easily with uncontroversial content-neutral regulations…”
No, I don’t think that they can, in the manner you suggest, because you are making assumptions that remove the content-neutrality. You don’t get to allow the Girl Scouts, and then ban Code Pink. You can’t allow schoolchildren to have a prayer moment, and then ban the Wiccans. If you allow 17 people to dance with their iPods, how would you stop 17 NYC-style cowboys in their underwear carrying guitars?
Given all that, how would you maintain the dignity and setting of say, the Vietnam Memorial with 17 BVD-wearing troubadours, wandering about strumming their guitars? Or, in the other example, the whack-jobs from that odd church who carry the signs associating gays and combat deaths in the military?
January 28, 2010, 12:25 amjccamp says:
SS -
Well, that’s a straightforward answer. I don’t see any point in going back and forth with minutiae of “what if?”
I don’t agree with you, but at least, you don’t waffle about where you stand.
Next time you’re town, I’ll stand you to a round.
January 28, 2010, 12:29 amRicardo says:
The “they” here refers to placards, loudspeakers, shouting, nudity (including no-pants attire) and anything else that would characteristic of a noisy or boisterous demonstration. Are you saying that such bans that make no reference to the content of speech would not, in fact, be content-neutral?
My point is that if a small group (say, less than 20 or 25) want to gather at a memorial and conduct themselves in a way at a certain time that is very unlikely to cause a disturbance or disruption of some kind, they should be allowed to do so. A group of people visiting one of America’s memorials should not have to imagine they are subject to the same rules as they would be in a visit to Tiananmen Square where just about everything that is not explicitly allowed is forbidden.
The rule here seems to be that anything that has a “propensity” to attract onlookers counts as a demonstration and can be banned. That strikes me as the wrong rule to use although it may well be constitutional and a correct statutory interpretation of the term demonstration.
January 28, 2010, 12:44 amGene Hoffman says:
The court conveniently ignores the part of the regulations that says, “This 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.” Where exactly did the government (or the court who has taken on the role of advocate here) prove that the plaintiff has the intent or propensity to attract a crowd? Does one lose the right of association or expressive speech for being cute (a fact not in the pleadings but..)?
-Gene
January 28, 2010, 1:33 amOren says:
Seems like a statutory fix, not a legal one, is in order. Heck, Obama can fix this one with a phone call — won’t even take an EO.
January 28, 2010, 1:57 amThe First Amendment Doesn’t Protect Libertarian Hippies Who Dance in the Jefferson Memorial » First Thoughts | A First Things Blog says:
[...] the courts disagreed. As Eugene Volokh explains in, Oberwetter v. Hilliard (aka, Hippie v. The Man), the court concluded [...]
January 28, 2010, 8:32 amRobert S. Porter says:
Wait, how is that reasonable? Of course it’s a public forum. This is absurd.
January 28, 2010, 9:40 amEmPalm says:
She did stop dancing. As the video clearly shows, she had stopped dancing and had been standing still talking to the officer for well over a minute before he placed her under arrest. And although the audio is a bit muffled and not focused on her, it seems clear that during that discussion, she was’t asking why she had to stop dancing, she was asking him why he continued to insist that she leave the Memorial even though she had stopped dancing.
Based on the video, it seems like Oberwetter’s original complaint didn’t include everything relevant that is shown in the video.
January 28, 2010, 9:48 amjccamp says:
Ricardo & Gene -
The rationale – approved by multiple court decisions – is that certain monuments and memorials are, by their nature, places for individual contemplation and quiet. Anything that might attract a crowd would, by its nature, threaten that quietude. You cannot regulate for taste or dignity, only for a propensity to attract a group. If, in Ricardo’s example, a group of schoolchildren at the Vietnam Memorial chose to stop for a moment of silent prayer, and others of like mind (maybe me) were walking by, they might decide to join in. Soon, you might have attracted a crowd – albeit a silent and presumably respectful crowd – but a crowd nonetheless. You can’t allow that crowd to congregate, but forbid profanity-shouting costume-wearing zanies or anyone else. If you did, you would be enforcing for message, not for the essence of the crowd itself.
Anticipating your next suggestion, how would you deny a request for a permit from Code Pink, assuming they made assurances they would be respectful and quiet – as they unloaded their bullhorns and the chains they planned to secure themselves to parts of the Memorial?
It just has to be all or none. You cannot make exceptions, because if you do, you’re now playing favorites. If the cops in this case allowed the free spirits to celebrate Tom’s birthday with an “expressive dance”, how could they deny another group permission to assemble within? I submit that they could not.
January 28, 2010, 10:05 amPintler says:
Does that have to be so? Commenters here regularly pillory zero tolerance policies (sexting is kiddie porn, plastic picnic knives are weapons, advil are controlled substances, etc). Wouldn’t a ‘disruptive behavior not permitted’ rule at least allow folks like the dancers to argue to a jury that the time, place, and manner of their behavior was not disruptive? Is the current state of the law such that bullhorns and quiet prayer are legally equivalent?
January 28, 2010, 10:52 amjccamp says:
EmPalm -
video?
January 28, 2010, 11:05 amgritsly says:
http://freethejefferson1.wordpress.com/2008/04/14/this-is-how-it-went-down/
January 28, 2010, 1:06 pmjccamp says:
thanks.
January 28, 2010, 1:39 pmBuddy Hinton says:
This is what happens when we put ex military men, who fought in the more recent “wars,” in charge of applying the Bill of Rights.
January 28, 2010, 2:54 pmjuris imprudent says:
jcc sez Fortunately or unfortunately, the DC Circuit of Appeals says so. You don’t have to agree. But it’s not ridiculous.
Actually, just because the DC CoA says so does not mean something is beyond ridicule. A decision is ridiculous when one can ascertain elements that are ripe for ridicule. The ruling may still stand as legal doctrine, but that does not immunize it from commentary – including ridicule.
The painfully obvious point out of this is that the NPP officer was projecting the “respect mah authoritah” mode of operation, and did not want to explain, he wanted to be obeyed. In a situation where there is OBVIOUSLY no imminent threat of harm, the officer should not have acted as though he was dealing with a belligerent and/or dangerous group. I will give him the benefit of the doubt that he is capable of responding in a more appropriate way.
January 28, 2010, 7:09 pmCorpus Juris Vol. VI » First Thoughts | A First Things Blog says:
[...] case you were wondering, there is no constitutional right to dance in the Jefferson Memorial. Comments [...]
January 29, 2010, 8:52 amOren says:
Seconded, despite my earlier ridicule of the petitioners as being unbelievably petty.
January 29, 2010, 11:47 amKim says:
“Let the reins of goverment then be braced and held with a steady hand,and every violation of the constitution be reprehended. If defective,let it be amended,but not suffered to be trampled upon whilst it has existance.” George Washington
August 15, 2010, 10:34 pmGround 0 and the Islamic Mosque ? That is not a neutral and reasonable view point and is unquestionable causing unrest and controversy across the US. It is as if our US Constitution viewing the First Amendment is being trampled upon.”Let It Be”….The Beatles or Jennifer Hudson and thank-you.God Bless America !