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Is That Legal – Public Dancing

Disclaimer: I am not a lawyer.  In accordance with ABA policy, this blog should not be viewed as legal advice.  It is simply my experiences, opinions, and information I looked up on the internet.

At 11:45pm on April 12, 2008, Mary Oberwetter and 17 friends engaged in silent dancing inside the Jefferson Memorial while listening to music on their headphones to celebrate Thomas Jefferson’s birthday.  The Park Police arrested her when she refused their order to stop.  Oberwetter was charged with interfering with an agency function and demonstrating without a permit, which violates the National Park Service Regulations.  She responded by filing a lawsuit claiming that the police violated her First and Fourth Amendment rights.  On May 17, 2011, the U.S. Court of Appeals affirmed the judgement that she was lawfully arrested and upheld the dismissal of her claims.

After the ruling came down, five more protesters were arrested for dancing in the Jefferson Memorial over Memorial Day weekend.  The group, led by Adam Kokesh and Edward Dickey, referred to their behavior as civil danceobedience.

Many people, including Elie Mystal from Above the Law, found the ban on dancing in memorials disgusting.  In response to the court ruling and the subsequent arrests, groups all over the world staged dancing events at memorials.  It was reported that as many as 38 countries participated in the event, including demonstrations at the Jefferson Memorial and in Phoenix, Arizona.  I could not find any reports of any arrests at any of the events.

Photo by Adam Nollmeyer

Unfortunately the problem here is the law is clear that any demonstration at a memorial won’t be tolerated.  It’s sad, but that’s what it is.  This event made me wonder, on what grounds might someone be arrested for dancing in public and what can people to prevent it?

Assault:  Assault requires intentionally, knowingly, or recklessly causing any physical injury to another person or placing them in reasonable apprehension of imminent physical injury.  So as long as you keep your body at a sufficient distance from other people, I don’t think dancing constitutes assault.

Trespass: Trespass requires knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry.  Public property, like parks containing memorials, are open to everyone so as long as no person with proper authority, dance on!

Unlawful Assembly or Riot:  These crimes require two or more people acting together with force or violence or threats of force that disturb the public peace.  As long as you and your friends can dance without threatening anyone, then it’s ok.

Disorderly Conduct:  This is a catch-all crime for general bad behavior; however, the law requires the intent to disturb the peace with unreasonable noise or violent or seriously disruptive behavior.  I’m guessing you have to be a really bad dancer to rise to the level of seriously disruptive behavior.

Obstructing a Thoroughfare: To obstruct a thoroughfare, you have to recklessly interfere with the passage of a thoroughfare by creating an unreasonable inconvenience or hazard without a legal privilege to do so.  Thus, dancing on the grass, away from the sidewalk or otherwise not interfering with other people’s ability to use the sidewalk because of your dancing appears to be permissible.

Bolin Park Rules by Ruth Carter

It’s important to note when you’re dancing at a memorial to look for any signage that indicated whether you are permitted to be on the memorial itself.  In Bolin Park in Phoenix, there are over a dozen memorials and statutes.  I was surprised that each one did not have a “Do Not Climb” plaque until someone pointed out that this notice was on the posted signs with all the rules regarding permitted behaviors in the park.

We had a great time at the dance event in Phoenix.  There was another rally going on and there was lots of police and security present.  At one point we went over to their area and started dancing on the lawn when they started to play music.  The police looked at us strangely and smiled.

Thank you to Phoenix commercial photographer Adam Nollmeyer for shooting such awesome footage at the Phoenix Dance for Liberty Flash Mob.

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  1. It’s always an interesting line between balancing freedoms. If National Memorials had no limits on protesting, I would imagine all of them would be packed constantly with people pushing every flavor of every issue. I don’t want to visit DC and wade through protestors at every stop yelling about Gay Marriage, Immigration, Death Penalty, Abortion, and on and on and on.

    The laws around this sort of thing seem to be to be fairly reasonable, but even if this group disagreed their dance off ended with about the only result possible. If they don’t like the law, they should keep working to change it.

    1. Ruth Carter says:

      These situations really come down to statutory interpretation. As I’ve been thinking about this situation and your comment, I’ve been trying to look at the situation from different angles . . .

      If 5 people are dancing in a memorial in the middle of the night and no one sees them, is it really a demonstration? Does a demonstration, by design, need an audience?

      If that’s not a demonstration, does it become one if video footage of their dancing ends up on YouTube, and thus give them an audience after the fact?

      What if there’s a guy visiting the memorials while wearing his iPod and he occasionally gets his groove on? Is that a demonstration?

      Black-and-white rules provide a great deal of security and limits, but on the flip side, they can over control reasonable behavior. If I had my choice between allowing all demonstrations and banning anything that looks like a demonstration, given that we’re only talking about national monuments, it seems best to err on the side of preserving the peace and enjoyment of the memorials.

  2. I think a big problem with making dancing illegal is the lack of legal definition for what dancing is. Personally I’m opposed to making this illegal and think that provided they do not obstruct my enjoyment of the monument, nor are they obviously demonstrating, let them shake about like fools.

    1. Ruth Carter says:

      I think we’d be headed down a slippery slope if we had a statutory definition for “dancing” and determining what constitutes what obstructs a person’s enjoyment of a monument. I think, because it’s too hard to define and police this type of stuff, the powers that be made their lives easier by outlawing everything. I’m all for public dances for joy, but I don’t trust the general public to try to take advantage of the rule you proposed.

      But if you want dancing to be legal, write your representatives. See if you can make that one of the issues on a presidential candidate’s platform. That would be awesome!