Coming to a place of honor and reflection near you.
On Saturday, the U.S. Park Police forcefully arrested five “Code Pink” protesters under the dome of the Jefferson Memorial for defying a recent Federal Appeals Court ruling that dancing at federal monuments was not constitutionally protected expression.
Perhaps you missed that ruling earlier this month, which was, I presume, made necessary by the realization that a flash mob could break out at any moment at the Lincoln Memorial or the Alamo. That was not the threat in 2008, however, when Mary Oberwetter was arrested, also at the Thomas Jefferson Memorial, for hoofing to celebrate Thomas Jefferson’s birthday.
She sued the National Park Service for violating her First Amendment rights, and on May 17 the U.S. Court of Appeals for the D.C. Circuit held that the Jefferson Memorial should have a “solemn atmosphere” and that dancing, silent or otherwise, was an inappropriate form of expression there. The appellate judges concurred with the lower court that the memorial is “not a public forum,” and thus 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.”
“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….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.”
Here we see, yet again, the law struggling with its traditional role of stepping into the breach when social disapproval, common sense and the Golden Rule fails to keep people acting ethically in their interactions with others. The United States has had a lot of these conflicts lately, as it struggles with an apparent increase in the number of citizens who think it is appropriate to behave like…well, what’s the right word? Assholes, perhaps? Let’s go with that. I apologize for the vulgarity, but sometimes it is necessary.
The best example of how much more culturally desirable it is to rely on people’s sense of decency and ethics than to have laws hanging over our heads is the sexual harassment laws. Any conduct amounting to genuine sexual harassment is so obviously wrong, an abuse of power and place, that no laws should have been necessary in a civilized country, except perhaps in France. But piggish men in powerful positions, people like David Letterman and Bill Clinton and Sen. Bob Packwood and Sen. John Ensign and thousands of corporate executives couldn’t resist the temptation to use their positions to try turn their staffs into personal pick-up bars, so now there are state and federal statutes that have office workers terrified that if they ask the same person out on a date after being turned down once, or note that someone’s new workout regimen is working, they’ll be sued, fired, and forced to wear a scarlet “H” on their resumes. Laws can’t allow for common sense and nuance, unlike ethics; they have to be clear and unambiguous, or they won’t work at all. When enough people set out to defy cultural standards of what is appropriate and considerate, legislatures and the courts have to get involved, and the end result is often worse for everyone.
Nobody thought, for example, that there needed to be a law against disrupting graveside services for fallen soldiers, until the loathsome followers of Fred Phelps began chanting anti-gay slogans and mocking military families’ grief at cemeteries. This required a U.S. Supreme Court decision confirming such awful behavior as protected speech, which has at least two perverse and undesirable effects: conferring some measure of respectability on unconscionable conduct, and making many Americans doubt the prudence of allowing unlimited free speech. The Westboro Baptist Church’s members don’t care, of course. They are assholes, and by definition, they don’t care if they make life worse for everyone else.
The courts, you see, have to protect those who stretch their rights to the point of being obnoxious, because this is one slippery slope we cannot risk testing. Unfortunately, when the competing rights of assholes and normal people who respect the traditional boundaries of ethical conduct have to be resolved by law, it is usually a no-win proposition. Thus in Indiana this month, the state Supreme Court abolished the common law right of a homeowner to resist an unlawful entry by police. The decision came in the wake of an increasing number of incidents nationwide in which citizens have resisted the lawful, though sometimes unjustified, instructions of police officers. Reactions to the infamous Gates incident in Cambridge, Mass., together with unscrupulous politicians comparing attempts to enforce immigration laws to Nazi oppression, have increased the perceived respectability of defying police authority. The plaintiff in Barnes v. Indiana was (and is, presumably), a card-carrying asshole, a spouse-abuser who refused to allow responding officers to enter his home to investigate what seemed like an instance of domestic violence. When officers entered the home despite his refusal, Barnes shoved one of them against the wall and got himself tased. Thanks to Richard Barnes, the Indiana court had to choose between making a public declaration that it was all right to attack police officers in the line of duty if they erroneously enter a home, and abridging a homeowner’s right that has existed since the Magna Carta. I think the Court chose the wrong road, but if Richard Barnes had behaved ethically, it wouldn’t have had to choose at all.
Now we have a little less freedom at national monuments, thanks to the determination of some people to abuse it. If I am a tourist from Des Moines, making a pilgrimage to Washington D.C. and staring up at Abraham Lincoln as I think about his words at Gettysburg, I don’t want the experience shattered because some Gleeks want to break out into a choreographed version of “Like a Virgin” in the hopes of getting a viral video on YouTube. I would hope that the rank lack of respect for the dignity of the setting such a stunt would involve and simple consideration for others would preclude the intrusion, but we live in a culture where rude, crude and flamboyant conduct gets people interviews, book deals and cable shows. Ethics isn’t enough, and the law has stepped in, ham-handed and clumsy as ever. Because of Mary Oberwetter, Code Pink and lurking flash mobs, a couple celebrating their 50the wedding anniversary that began with a proposal at the Jefferson Memorial can’t indulge themselves in a silent, romantic midnight foxtrot under Thomas’s approving gaze without fear of being arrested.
Don’t blame the law. Blame the assholes who make the law intervene where common sense and ethics should have been good enough.
Ethics Alarms 
Yep. I agree, but what leads me to comment is the recollection of an old joke.
Why don’t [insert conservative relgion here] folks like to have sex standing up? They’re afraid somebody might see them and think they were dancing!
I have to disagree in this instance. It is unfortunate that one “asshole” shoving a police officer up against a wall results in our right being stolen. I’m sure this has happened in many instances before, and our rights were never taken away then.
As for Jefferson’s Memorial, I think you totally missed the point here. Brooke was only participating in a group tribute to the late Jefferson. There was nothing disrespectful about it, unless you are a close minded “asshole” like yourself! Sorry for the vulgarity, but sometimes it is necessary. What the fuck happend to freedom of speech and the right to express oneself freely? Dancing on “Memorials,” not graves, may be disrespectful to you, but that is only your opinion. Thomas Jefferson in not buried here so I do not see any problem with commemorating his life and legacy in any form of expression you like.
“It is unfortunate that one “asshole” shoving a police officer up against a wall results in our right being stolen. I’m sure this has happened in many instances before, and our rights were never taken away then.”
What kind of point is that? “Everybody does it”? The point of the article is that the people who use their rights in selfish and reckless ways precipitate legal responses that we would be better off without, and the Indiana case is such an example. How does the fact that other people may have done the same thing relate to anything? You might as well have written, “Oh YEAH???’ and left it at that.
“Brooke was only participating in a group tribute to the late Jefferson.”
Why, gee, why didn’t Brooke bring in a punk band, then, and go all out? Everyone has previously understood that tributes at memorials weren’t appropriately expressed as dancing, singing, setting off fireworks and having greased pig races, because other people have a right to appreciate the scene in peace without someone else taking over. Again, your “argument” ignores what the piece was about.
“What the fuck happened to freedom of speech and the right to express oneself freely?”
What? Strike three on an intellectually lazy and non-responsive comment. I’m the one who wrote that our freedom to express ourselves responsibly at a memorial—nothing wrong with that romantic dance—was taken away as the result of creeps like Code Pink intentionally pushing the envelope, because they “can”. Your point..I have no idea what your point is. There’s free expression everywhere, and until some fool felt she had to sue for the right to dance, there was free expression at memorials—people just applied common sense.
“Dancing on “Memorials,” not graves, may be disrespectful to you, but that is only your opinion.”
No, that’s the COURT’s opinion, which I suggest you really read before making snarky comments that show you either skimmed the post or had it mistranslated into your native tongue. Among other nuances your careless reading failed to grasp, I suggested it was disrespectful to others who are present, not to Jefferson or Lincoln.
If you want to use words like “asshole’ or “fuck,” even ironically, I require that the comment meet a threshold level of fairness and relevance. This one doesn’t.
“Why, gee, why didn’t Brooke bring in a punk band, then, and go all out?”
Because everyone knows Jefferson was a country fan.
On topic: What I don’t understand is why the courts will let Phelps do his vile thing at funerals, but a few people can’t have a midnight dance with Thomas Jefferson. My mind wants consistency.
Then avoid the law.
I have to go back and read the SCOTUS opinion on Phelps again. I’m not at all sure that the Supreme Court would uphold that dancing ban.
It strikes me that the original “asshole” in this case was whoever arrested Mary Oberwetter. Even the Appellate Court grants that she was unlikely to be actually disturbing anyone. Just as there is behavior which is technically legal but abhorrent (Phelps), there is also behavior which is technically illegal but ultimately innocuous: I don’t know the details of the Oberwetter case, but I’d suggest her dancing might well qualify. Surely if it had bothered someone, that complaint would be part of the record, yes? But no, some junior g-man has got to show off how tough he is and arrest her.
And things escalated from there. There’s no denying that many (all?) of those arrested this weekend were intentionally “breaking the law,” and there was likely to be no good outcome: they were going to do anything they could to attract attention to themselves, possibly with the actual aim of getting arrested. But it is also true that they were reacting to something they perceived as a violation of an individual’s rights: I’d argue that their case is a little weak, but not non-existent.
And so they do their little demonstration, and the Park Police over-react egregiously: body-slamming and choking someone for… dancing (!?!). Even for dancing when told not to? Really?
I’m not denying the assholitude of the protesters. I’m just saying there’s plenty to go around. Another case with no good guys, as far as I can tell.
Yes, I’d say the original arrest was excessive, though behaving strangely at a memorial is inconsiderate and even in the case of Mary, selfish grandstanding. I mentioned the Alamo because you can get thrown out of there for wearing a hat or talking too loudly….be respectful, or else. Luckily, most people are, and that’s a reasonable standard, given what happened there. Would Mary or Code Pink dance there to celebrate Davy Crockett’s birthday?
I’ve been to the Alamo several times, and you’re right about the required decorum. That said, while I’ve actually seen someone escorted out of the building there, I’ve never seen anyone actually arrested, and certainly not body-slammed.
You’re welcome to try a flash mob at The Alamo. 50-50 they start shooting.
And not just the cops, Jack!
But, as you point out, public decorum is a necessary attribute to all civilized human interaction. When people create a nuisance or a disturbance in a building or other place- whether publically or privately owned- the proprietors have every right to insist they that cease or be evicted. When they do it in places or reverence or commemoration, I insist so! Their “right” to make a public spectacle out of themselves is trumped by those others who chose to respect the institutions and standards of conduct that the demonstrators decry.
I think there is an amnesty bin where bodies of disrespectful miscreants killed by Texans at the Alamo are allowed to be dumped with no charges filed…
I almost invoked the privilege when I saw a punk teenager wad up a candy wrapper and dropped it on the Alamo grounds despite a trash bin being 20 feet away.
How the HELL is it OK to burn the American flag but not OK to dance with Jefferson? Its is CRAZY that these people were arrested and no, they are not assholes. How about some DISCRETION??? Yes, Brooke could have gone all out witht he punk band but she didn’t! By the way dude …”or had it mistranslated into your native tongue” ????? What’s the deal with this comment? I imagine this isn’t the first time someone disagreed with you – yes? I guess Julia is not a REAL American because heaven forbid she (like me) actually thinks free speech should also apply to monuments.
Well, you’re as bad as she is. You can’t read either.
If it is in fact against the law and the courts say the law is fine, then the police can’t exercise discretion, and discretion cuts two ways. How about not dancing, when you know its going to cause a confrontation?
(They would have been arrested for burning a flag in the memorial too, by the way.)
If you won’t read the opinion and can’t understand the post, which really isn’t that complicated, I’m not going to waste my time arguing with you. I wrote that reasonably applied, there didn’t need to be any restrictions on dancing in memorials, because it is inappropriate. Get it? INAPPROPRIATE. Not something that needs to be illegal. Now that its been brought to court, yes, freedom is restricted unnecessarily, because of a dumb, pointless challenge.
Among the many things you seem not to understand was the punk band reference. Why NOT the punk band, once you”ve opened the door to flash mobs? The law requires hard rules and precedents. That’s why it is best for them to have to make as few rules as possible, and hope people are considerate and ethical—unlike Brooke and her buddies.
And I was not suggesting that Julia isn’t a real American. I was suggesting that, like too many Americans, she’s advancing an aggressive opinion without knowing what she’s talking about. The post was not arguing that dancing in memorials should be prohibited. That wasn’t its point, and the actual point was clear to anyone who has a basic comprehension of English. Nor does the excessive police arrest relate to the post. I didn’t defend the police or the decision; I said that people who won’t follow sensible, agreed-upon non-legal restrictions on conduct make the law step in and spoil things for everybody, which I believe was in CAPITAL LETTERS in the title.
I know this is off-topic wrt to the demonstrators’ behavior, but since you brought it up…
I’m confused by the suggestion that “police can’t exercise discretion.” Don’t they do that all the time: arresting people in one situation but giving people warnings in a very similar case, not bothering to stop the guy going 38 in a 35 mph zone, not enforcing dumb laws like those we see on the web about eating ice cream on Sunday in Spider Breath, MT or whatever?
That was imprecise of me. Park police in DC have little discretion, because they are only there to enforce a narrow bandwidth of rules. Minor infractions in these specialized, public attractions become major; the “broken window” syndrome lurks. They do have discretion about how they go about it, however.
“Code Pink” was trying to provoke a confrontation,,,,that’s what they do. That’s what we did in the Yard in 1968. If you can’t get authorities to over-react, there’s no point in demonstrating.
And now there is a huge group of people going to dance there this weekend, The thing is that Jefferson being the machivellian bastard that he was most likely would have them all beaten if he were alive to day.
Don’t be so sure. Jefferson was a leading critic of the Alien and Sedition Acts of 1798, which made speech critical of the government a crime, on the basis that it was unconstitutional under the 1st Amendment. Ironic.
That’s just because it was Adams. He did his bit to curb criticism when he got to the White House. Hypocrisy was not a problem for Tom—he embraced it.
Who says YOU get to decide what is an “appropriate” form of expression? If I feel like a little dance number is my way of expressing my freedom at the Jefferson memorial you don’t get to decide that suddenly I’m an “asshole” for it. You just don’t, nor does an overzealous mall cop.
Point about disturbing others taken yes, but as long as it’s short and doesn’t distrupt the tourists very much, where is the harm? The family from Des Moines will hopefully recognize it as celebration of freedom of expression – YOU KNOW, THE VERY THING THAT JEFFERSON FOUGHT FOR?? – and enjoy it a little bit. As long as it’s relatively short I think they can “endure” it for a couple of minutes, if the alternative is smashing people’s face into the ground and arresting them for expressing their freedom. This is still America, isn’t it?
I like this comment, so I’m leaving it up, even though the writer is so timid and pusillanimous that he doesn’t have the guts to either leave a name or an email. He’s not getting a second bite without them. But two points: 1) the DC court ruled it was inappropriate.As of now, that’s the law of the land. 2) the reaction of the police is 100% irrelevant to whether the dancing was necessary, or polite, or considerate of others. It’s lazy argument. The arrest doesn’t make the dancing more appropriate, and it doesn’t make it less, and anyone, including No Name, who uses this tack is desperate and out of bullets. At least he didn’t use Iraq.
so is a child going to be arrested for skipping now? silent slow dancing in a corner as a tribute isn’t a 500 person flash mob. isn’t there to be viral. is there to be a tribute to someone who believed in freedom enough to stand up for it.
you sir, are an idiot.
N.B clean your web design up, your site is painful to read
Silent slow dancing isn’t a flash mob, but if it is permitted in a demonstration setting, then there is no way to stop a flash mob. You do understand how laws work, right? Did you bother to read the opinion?
Standing up for “freedom” to be jerk isn’t necessary, and it isn’t productive. But you don’t have any reasoning in there that I can measure—that’s right, if anyone questions the rights bullies, they’re idiots. I’m sure the world will be freer and better when tourists can’t respect thomas Jefferson in silence and peace.Good plan. Yes, I think “asshole”is looking better and better.
And I’m sure it’s ALL painful to read. I like my web design, thanks.But I appreciate the unsolicited input without constructive or perceptive analysis. Sort of like the rest of your comment.
I’m pretty sure a law against “disorderly conduct” could be effectively interpreted to allow silent slow dancing while giving officers the discretion to arrest those who were actually disruptive. I haven’t seen the letter of the particular law that was violated in this case… is it a law against dancing, or a law against being disruptive? If the latter, then the protest is likely unjustified. If the law is against dancing, it may well be unconstitutional… and Code Pink is performing a public service by facilitating that testing.
It certainly doesn’t specifically prohibit dancing, which would be, as you say, arbitrary and unconstitutional. The point is that dancing is one activity that is defined in a memorial as a demonstration, and a demonstration requires a permit, unlike at public forums, which, the courts have ruled, the memorials are not. The original case was, in fact, dance as demonstration, and by definition what Code Pink did was a demonstration too. The permit requirement is reasonable…if in fact the dancing is like picketing or chanting, I don’t see that it is out of line.
First time visitor here. If I understand correctly (and feel free to insult me if I do not) you believe that dancing at memorials is inappropriate, but should not be illegal. Some people chose to dance at the Jefferson Memorial inappropriately, they were arrested, and the court ruled in favor of their arrest. Therefore the people acting inappropriately stole everybody’s right to dance at memorials because they were assholes. The Code Pink activists who showed up to dance and be arrested are likewise assholes for doing something inappropriate.
It seems to me that appropriateness is in the eyes of the beholder, and that dance can be a solemn commemoration equally as well as being a flash mob farce. Not having been present at the original performance I can’t know how appropriate it was, but in my opinion it’s irrelevent.
American society 100 years ago considered same sex and interracial relationships inappropriate. If an interracial or gay couple were arrested and imprisoned for kissing in public, would you say that they “stole the rights” of other similar couples by forcing the law to rule on their behavior? I’d say the freedom was already gone when they were arrested. And fighting such a ruling in court is how freedoms are preserved in this country.
Bravo to Code Pink for confronting and pushing this issue. I don’t agree with everything they do, but I am happy there are “assholes” willing to risk prosecution to legally challenge an (arguably) unconstitutional law.
History books are full of assholes. People who sit down, shut up, and behave appropriately at all times… not so much.
But this isn’t Rosa Parks, and it isn’t the kid standing in front of the tanks. Decorum in certain places is better for everyone, and yet it is usually shattered by, yes, assholes, who want to challenge the status quo because they can, not because they need to or because any purpose is served by doing it, but because they can pump up their little chests with the fiction that they have accomplished something when in fact their actions are destructive. There is not shortage of places to dance in America. You can dance on the diewalk, you can dance outside the memorials. You just can’t, or shouldn’t dance inside the meorials any more than you should do it in a church. (Go ahead, try it at the Alamo. I dare you.) Confronting and pushing WHAT “issue”? The non-issue of completely gratuitous dancing in a place where most americans just want quiet? Yes, by all means, lets test the Firts amendment as applied to dancing at the Eternal Flame, and libraries. The more I read such self-celebratory, inflated back-patting for doing nothing worth a warm pool of spit, signifying nothing but contempt for everyone else, the less bad I feel about calling the dancers, and Rev. Jones, et al., assholes. I still feel bad, but keep writing excuses like this, and I’ll get over it.
i like this. a lot. good write-up.
I’m no bible scholar, so maybe somebody else can answer this question (with citation, please):
Was it Solomon or David who danced before the Ark of the Covenant in the temple?
Thank you.
It was David…read 2 Sam 6:1-23
I just happened to stumble upon this web site as a JD student working on a Con law assignment. Wow-there really are some @$$holes out there!
Mr. Marshall-EXCELLENT piece! I totally agree with you. My husband and I have worked very hard at raising two very good, ethical, moral, appropriate, reverent, and I’ll even throw in awesome kids. I can assure you that at least 2 future adults in this great nation of ours (or what is left of it) will carry on the legacy.
Best wishes and please keep up the great work! If I ever get through my JD, I’m going into writing good policy!
Have a glorious day!
Make sure to not repeat your sentiments once you ARE at the memorial…you’ll get arrested. In fact, for someone eloquent, like you, I’d recommend silence.
Respectful silence at a memorial? What a novel concept!