No Constitutional Right to Dance in the Jefferson Memorial

So holds today’s D.C. Circuit decision in Oberwetter v. Hilliard, concluding that (1) the Jefferson Memorial is a “nonpublic forum” in which reasonable, viewpoint-neutral restrictions are permissible, and that (2) the government could therefore bar from people from engaging, inside the Memorial, in

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.

Plaintiff was ticketed for engaging in what she called “expressive dancing” late at night at the Memorial, and the court said such a ticket was justified by the regulation, and constitutionally permissible:

True, [the dancing] 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.

That sounds quite correct to me. The government as property owner has (and must have) considerable authority to restrict speech on its own property (setting aside traditional public fora, such as sidewalks and parks, as well as fora deliberately opened for public expression). The Supreme Court has held that as to such nonpublic forum property, the government’s authority is indeed quite broad, so long as the restriction is reasonable and viewpoint-neutral. The Memorial strikes me as a good example of a nonpublic forum, a place not open, by tradition or by government decision, for public expression; the restriction is indeed viewpoint-neutral; and it does seem reasonable given the purposes for which the property is dedicated. Thanks to How Appealing for the pointer.

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