"Expressive Dancer" At the Jefferson Memorial is Thwarted in Court

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FedSmith.com readers may recall the case of the “expressive dancer” arrested by the U.S. Park Police when she was found dancing in the moonlight at the Thomas Jefferson Memorial, apparently to honor the author of the Declaration of Independence on the eve of his birthday.

Thwarted by a U.S. district court in her efforts to make those who arrested her pay, Mary Brooke Oberwetter took her fight for First and Fourth Amendment freedoms to the federal appeals court. In Oberwetter v. Hilliard (C.A.D.C. No. 10-5078, 5/17/11), the appeals court has now affirmed the dismissal of her case.

(For a rundown of the facts, see our article on the district court decision. (See Dancing the Night Away (At the Jefferson Memorial) )

Oberwetter, apparently enraged that the Park Service would require a permit for expressive dancing to celebrate Jefferson’s birthday, saw fit to sue the agency as well as the arresting officer—the latter in his individual capacity. Essentially she believed her arrest for failure to have a permit for herself and her 17 friends to dance at the Memorial to be a violation of her rights.

The appeals court recently sided with the district court, opining that “the conduct is. …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 (of the Park Service] are designed to preserve.” (p. 7)

The court goes on to say that, certainly Oberwetter had the “right to dance” to celebrate Jefferson’s birthday: “Outside the Jefferson Memorial, of course, Oberwetter and her friends have always been free to dance to their hearts’ content.” (p. 13)

Short of getting the U. S. Supreme Court to agree to now take up her cause, Oberwetter’s dancing days (or should I say, nights) inside the Jefferson Memorial are over.

In an amusing aside, the appeals court points out that “Mr. Jefferson is on record discouraging celebration of his birthday. ‘On Mr. Jefferson’s accession to the Presidency [visitors] had waited on him, requesting to be informed, which was his birthday, as they wished to celebrate it with proper respect. “The only birthday I ever commemorate,” replied he, “is that of our Independence, the Fourth of July.” ‘ “ (p. 2, note 1)


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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.