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.