D.C. Cir. – No Flashmobs in the Jefferson Memorial

By J. DeVoy

Public lands are not necessarily public forums, or so the D.C. Circuit tells us in yesterday’s Oberwetter v. Hilliard, et al. decision. Case No. 10-5078, available here.  Oberwetter and 17 friends conducted a silent dance in tribute to President Jefferson shortly before midnight on an April evening back in 2008. (Query whether the participants were University of Virginia alumni – the appellate record is silent on this point.)  When asked to leave, Oberwetter asked for a lawful reason compelling her to do so.  Oberwetter was then detained – allegedly with excessive force – and subsequently served with citations for interfering with an agency function and, more troublingly, public demonstration without a permit.

The district court dismissed Oberwetter’s complaint for failure to state a claim, holding that she was lawfully arrested for violating the reasonable regulations that govern the Jefferson Memorial, a nonpublic forum reserved for the tranquil commemoration of Mr. Jefferson’s legacy. Oberwetter v. Hilliard, 680 F. Supp. 2d 152 (D.D.C. 2010). The court further held that Hilliard had probable cause to make the arrest, and that he used reasonable force to subdue Oberwetter without injury after she twice refused his lawful orders. (Source at 4.)

Oberwetter’s argument that her activities were not proscribed by regulation fell on deaf ears.  While not a demonstration in the traditional sense of the word, her activities fell within the boundaries of 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.” 36 C.F.R. § 7.96(g)(2).  Because the group of dancers constituted one or more people, had the intent or propensity to attract onlookers, and communicated an appreciation for President Jefferson’s legacy, there was little question for the D.C. Circuit as to whether it was a “demonstration” within the regulation.

The Court goes on to provide depth to its public forum analysis, and provide more information about the doctrine than most attorneys glean in their two months of BarBri.  Whether public lands are a public forum depend on the purpose it serves, whether by designation or traditional use.  When the government has dedicated land to use for a purpose inconsistent with public expression and debate, then the classification precludes the land from flat classification as a “public forum.”  This is why demonstrations are allowed on the national mall, but not at your local U.S. Courthouse or IRS office.

The D.C. Circuit held that the District of D.C. properly found the area within the Jefferson Memorial to be a nonpublic forum.  As a fact-specific inquiry, the court found that:

As a general matter, the interior space of national memorials has not traditionally “been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry, 460 U.S. at 45 (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)) (internal quotation marks omitted). 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.

Even as part of the National Parks System, the Jefferson Memorial is not automatically a public forum.  The Circuit Court found that National Parks are too vast and varied in nature and contents to be broadly and uniformly cast with a blanket designation of public fora. Boardley v. U.S. Dep’t of Interior, 615 F.3d 508, 515 (D.C. Cir. 2010); see also Lederman v. United States, 291 F.3d 36, 46 (D.C. Cir. 2002) (noting that “some areas within a large public forum may be nonpublic if their use is specialized”) (internal quotation marks omitted); Cmty. for Creative Non-Violence v. Watt, 703 F.2d 586, 599 n.35 (D.C. Cir. 1983) (en banc) (plurality opinion) (observing that the Park Service “need not treat the [National Mall] as a monolithic whole”), rev’d sub nom. on other grounds, Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984).

Like courthouses and certain other federal structures, the fact that the Memorial is open to the public does not change its status as a nonpublic forum.  While a restriction on free speech is always problematic, if not regrettable, the public forum doctrine is deeply rooted in precedent.  Moreover, in light of recent events – namely the insurgency of unbathed masses in Wisconsin, commandeering the state capitol and subverting the rule of law based on flawed conceptions of Wisconsin’s open meetings law and “human rights” (with collective bargaining for public employees being right up there with life, liberty and the pursuit of happiness) – it makes sense to allow essential government functions that occur in nonpublic fora to take precedent over individual speech.  While individual speech and expression is valuable, it is not so valuable that it entitles individuals to stage sit-ins at branch offices of the FDA or other agencies, and impede the operation of agencies that may have no connection to the speaker’s message.

While disheartening, as this decision renders the Jefferson Memorial a nonpublic forum, its conclusion is not necessarily surprising in light of the well-tread public forum doctrine.

H/T: Will.