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.

7 Responses to D.C. Cir. – No Flashmobs in the Jefferson Memorial

  1. John says:

    I would ask the court to distinguish between the Jefferson and Lincoln Memorials. The Lincoln Memorial has certainly been the venue for public demonstration, though primarily on its steps. Is the court saying that had the dancers constrained themselves to the half-dozen or so steps surrounding the Jefferson Memorial, they’d have been fine, but by entering the structure proper they were in violation?

    I don’t see how the court should accept the power of DC regulators or the National Park Service to decide which memorials are appropriate for the exercise of free speech.

    These memorials are certainly different from the USDA or IRS buildings. That’s not the point. They are more alike, the two of them, than they are different. If anything, one would expect the Jefferson Memorial to be more welcoming of speech.

  2. m says:

    I would guess that those who demonstrate at Lincoln Memorial would often get a permit that would set forth where they are allowed to demonstrate, how and for how long. Lack of a permit (plus contempt of cop) seem to be issues in this Jefferson Memorial case.

  3. […] wouldn’t believe who else was there.  Jay Devoy (wearing black, natch) of the Legal Satyricon. He was discussing the recent “Dancing in the […]

  4. Chris says:

    What the hell business is it of the government to decide what is and what isn’t a public forum, and how is that not a direct violation of freedom of speech? Do these idiots in office understand the fact that our forefathers made freedom of speech the very FIRST amendment to the constitution with a very specific purpose in mind when doing so? So when it’s taxpayer funds that pay for the day to day operation of these facilities not to mention the wages of these officials who make these decisions, how the hell is it not in violation of our Bill of Rights to tell us that we can’t demonstrate in these places? I can understand if you were demonstrating in a place of business such as a courthouse and doing so in a manner that was disruptive to the proceedings, but what happened at the Jefferson Memorial is un-American, unconstitutional, an act of government aggression and abuse of power, not to mention just plain wrong.

  5. R. Srubas says:

    “insurgency of unbathed protesters in Wisconsin”? This is obviously NOT an objective piece.

    • J DeVoy says:


      There was a time, namely during the depression, when people with nary even a high school education properly articulated their complaints with polysyllabic words like “Transients.” Now the discourse has been coarsened to one-syllable, one-word causes anyone can support, because they mean whatever the person saying them wants (e.g., “JOBS”).

      In Wisconsin, libs are just butthurt that they lost during the election, can’t read WI’s open meetings law, and think that sitting in on government will magically change things. It doesn’t, and won’t. I laugh at their pain.

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