By Janie Paulson
“I love to dance” claims the heroine Janey in in the 1985 move “Girls Just Want to Have Fun.” Sweet¹ Mary Brooke Oberwetter shared Janey’s passion for dance. On a lovely² spring evening in 2008, she and a few others met at the Jefferson Memorial to dance as an expression of their speech and love for Mr. Jefferson on his birthday. Who doesn’t like dancing on their birthday! They didn’t have a boom box, just ear buds to give them a beat in their ears while they each silently danced around the memorial. Watch a youtube of the silent dancing.
Well, the dancers started getting a small crowd and the park police decided to shut the dancing down. Sweet Mary refused to stop dancing for Mr. Jefferson, so Sweet Mary was arrested. (Next time you feel the need to dance, be careful you might be arrested.) Sweet Mary decided to bring a civil suit alleging that her First Amendment rights were violated because she believed in dance as expression.
Just as Janey’s father didn’t share her love for dance, neither to DC courts.³
The Court of Appeals for the District of Columbia recently upheld a district court’s dismissal of Sweet Mary’s claim that her First Amendment rights were violated. While the decision is completely reasonable and certainly doesn’t dance around the issue, this post wouldn’t be nearly as enjoyable without a few jokes.
According to the court, Sweet Mary’s dancing, an expression for Jefferson’s birthday, was in fact a demonstration and performance and thus was prohibited. The court pointed out that expressive dance at the Jefferson Memorial has always been prohibited. Dancing detracts “from the atmosphere of solemn commemoration.” Maybe someone should tell the numerous children yelling and running around the monuments every day that “visitors are not invited for expressive purposes, but are free to enter only if they abide by the rules that preserve the Memorial’s solemn atmosphere.” The opinion certainly could be used as precedence to prohibit dancing in other memorials or other tourist attractions (such as Eveleth’s hockey stick or Bemidji’s Paul Bunyan) so be beware flash mobbers.
Only a great jurist could summarize Sweet Mary’s rights this way: “there is no question that she had the right to dance in order to express her admiration for Mr. Jefferson. Of course she did. But the question this case presents is whether she had the right to perform her dance inside the Jefferson Memorial.” And the court on multiple pages said, no, Sweet Mary cannot perform her dance inside the Jefferson Memorial.
And who doesn’t like birthday dancing? Thomas Jefferson. The opinion notes that Jefferson discouraged celebrations of his birthday.
Read the full opinion, especially you law students as the fact pattern and analysis reads like a sample con law essay question and answer.
Looks like Dancing With the Stars will not be at the Jefferson Memorial anytime soon.
————1 Ok, I don’t know if Ms. Oberwetter is actually sweet but the story is much more fun when you imagine her as the girl who just wants to express her love with dance.
2 Ok, it may not have been a lovely evening. I’m just guessing since it is a spring evening in DC.
3 Ok, I bet many DC court employees and even a few judges like to dance.