|Dance of the Day: Protest
||[Jun. 6th, 2011|10:25 am]
One of my students made this video about a protest event in Washington. Please watch the whole thing.
Most of my response below was written in a response to someone posting a related article on Facebook.
The protest that sparked this protest was based on a federal judge opinion behind an incident where a woman and her friends held a dance vigil within the rotunda on Jefferson's birthday. You can read the text of the decision here: http://www.cadc.uscourts.gov/internet/opinions.nsf/748BE2DE8AF2A2A485257893004E07FC/$file/10-5078-1308285.pdf
The protest of this judge's opinion was filmed and in the video, rough arrests were made. Now, I do not condone the violence with which those arrests were made, but given how combative the protesters were when challenged, arrests were warranted.
Demonstrations are not allowed in all of 5 areas in all of Washington, DC, including inside the Jefferson Memorial as defined by the outer columns of the memorial. By holding a demonstration there, they were violating federal administrative law - http://cfr.vlex.com/vid/7-96-national-capital-region-19768726
Of particular note from the judge's opinion is the distinction that the inside of the Jefferson Memorial is defined as a non-public forum dedicated to solemn commemoration. Or, in other words, while not a physical graveyard site, this Memorial carries the same atmosphere as a graveyard site. That is one definition of memorial - an object or structure created in remembrance of someone who has died. A grave marker is a memorial. The Jefferson Memorial is a memorial.
Is it respectful, then, to dance on the graves of the dead?
That said, it is legal to dance at the memorial. It's in bad taste, but it's still legal. It is *not* legal to organize a public demonstration inside the memorial. Here's the exact language of the law from cfr.vlex.com site on what constitutes a demonstration -
"(g) Demonstrations and special events (1) Definitions. (i) The term demonstrations includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve 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. This term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers."
They can dance near, and even on parts of the monument. Demonstrations are not allowed in the area that starts from the outermost surface of the outer columns and moves inward. From the three steps past those columns and outward, you can dance as much as you like. The area at the landing of those first three steps is at least 15' to 20' deep. Here's an overhead shot for reference - http://www.criticalpast.com/app_old/cpdata2/65675075811/big/65675075811_000023_3.jpg ... plenty of room for dancing, there.
I recognize that we have the right to assemble, but that comes with the responsibility to do so in an orderly fashion. If the original dance vigil and flash mob had organized just a few steps away, outside the rotunda, this would be a non-issue as long as there were less than 25 participants. And for more than 25 participants, they could have applied for a permit from the National Park Service, as long as they gave them a few weeks notice.
Just as we have laws against Westboro Baptist Church holding an organized demonstration right on the site of a military funeral (they have to be more than 300' away from the cemetery), we have a law that says people can't hold organized demonstrations at what is effectively a satellite grave site.
I think it's a fair balance between 1st Amendment rights and common decency. For what few places there are where demonstrations aren't allowed for reasons of safety or respect (again, there are only 5, three of which are also memorials to the dead), any other public space defined as such is fair game...as long as it follows the rules regarding acquiring a permit when applicable.
Thank you for pulling up the actual legal decision regarding the original Jefferson Memorial dancing. It adds a lot to the discussion.
There are several questions here, often with contradictory answers. Was it legal for Oberwetter to dance in the Jefferson Memorial, was it right for her to do so, and was it good for her to try? Was it legal for the protesters to have a protest at the memorial, was it right for them to do so, and was it good for them to do so? And finally, was it legal, right, or good for the protesters to dance at their protest. While they are all variations of the same question, each evokes a different response.
The legal questions are the easiest to answer, and the court decision makes it very easy to address. It was illegal for Oberwetter to dance in the memorial, it was legal for the protesters to protest outside the memorial, illegal for them to protest in the memorial, and illegal for them to dance in the memorial regardless of whether or not it was part of a protest. The law is quite clear on these matters.
Laws, however, are supposed to be reflections of societal values, including what society considers right and good. We will define a "right" as a privilege guaranteed by society because to do so is more just than to not do so. We have a right to free speech because society believes it is more just to allow people to express their beliefs and opinions and to conduct discourse without fear of reprisal than it is to allow speech to be curtailed. We have a right to own and carry weapons because society believes it is more just to allow people means of self-defense than to only allow people to be defended by socially-approved guardians (i.e. police, soldiers, etc.). Does Oberwetter have a right to dance?
The court document is unequivocal that she does. It explicitly acknowledges dance as an element of free expression. The question they ask is whether Oberwetter has the right to dance in the Jefferson Memorial. Noting the Memorial as a site dedicated for contemplation, reverence, and reflection, the court concludes that Oberwetter should not be engaging in dance or any other act of expression within the Memorial. Because courts exist to specifically interpret societal values we may conclude that society does not consider Oberwetter's dancing within the Memorial to be more just than even the theoretical quiet reverence that may or may not have been occurring at the time of her dancing; ergo, she does not have the right to dance within the Memorial, though she does have the right to dance in other places.
The protesters responded by staging a dancing protest within the Memorial. From the court document we may use the identical lines of logic to conclude that they had the right to do neither. Their dancing is only right if their protest is right, and while society as per the courts considers protests to be right, they also place limits on when and where such protests may occur vis-a-vis permits, placing specific places off-limits, etc. A dis-favorable view would regard the decision as a denial of right to protest while a favorable view would regard this as upholding the right to quiet reverence over the right to protest in this specific venue. For arguments' sake, we will accept the favorable view: it is right for the protesters to protest outside the Memorial, with or without dancing, but not for them to protest within the Memorial.
Finally we ask questions of the good. While rights are societal interpretations and guarantees of justice, the good is the moral analysis that informs that interpretation. A question of right asks whether society does per permit Oberwetter to dance within the Memorial, while the question of good asks whether society should so permit.
Oberwetter claims that her dancing was in celebration of Mr. Jefferson's birthday, and thus presumably to honor his life and ideals as well (for this is why we celebrate someone's birth). As the court document points out, however, Mr. Jefferson himself was against celebrating his birthday and felt the best way to honor him was to celebrate his works, vis-a-vis the country he helped create. Oberwetter's dancing therefore dishonored Mr. Jefferson, or at the very least contradicted his express wishes, which we may assume negated her intended purpose of honoring him. Thus it was not good for Oberwetter to dance in the Memorial.
The question of the protesters, however, is more perplexing. It is good to protest but while we have already established A) that the cause they were protesting was not a good cause and B) they were protesting in a place they did not have a right to protest in, I maintain that C) the protest itself had value and was good. Protests by definition must be disruptive. The purpose of a protest is to call attention to an injustice, which cannot and will not happen if protests are done calmly and out of the way. For example, the designated protest zone during the 2000 Democratic Convention in Los Angeles was so removed from the convention center that it would have been both possible and easy to ignore the protests entirely; as such, the protesters were able to challenge the layout of the site to move to protest zone closer to the convention center. The legal challenge was successful but even if it had not and the protesters denied legality and right in demonstrating closer, it would not have changed the fact that it was good for them to do so because demonstrations must have visibility to be relevant.
The protesters protested inside the Memorial for the right to dance inside the Memorial. While the protest could have occurred outside the Memorial it would have been both less visible and less effective as, in this instance, the medium (dancing inside of the Memorial) and the message (dancing inside the Memorial) were the same. While it was not legal or their right, their purpose was to challenge society's view that it should be both. In doing so they were disruptive but such is the point of a protest and the existence of such disruption as a good is why freedom to assemble is part of the First Amendment (even if society did not consider it relevant in this instance). In doing so they forced arrests and a legal challenge which results in a re-questioning of the right to expression and protest within national monuments. It is this last point that is good.
How we address government, questions of expression, and our ability to challenge society are extremely relevant questions in the current age. Even if the courts come back with a resounding, "No!" which seems overwhelmingly likely, this protest caused them to engage the issue. Engagement is key. In an era where rights are being eroded by security decisions, presidential papers, secret courts, and black government agencies, we must engage on which rights we are going to keep and which ones we're going to fight for. From the court document regarding Oberwetter, to the tourist in the video who eloquently takes the protesters to task, to this discussion, people are engaging on the question of freedom of assembly. To quote Martha Stewart, it's a good thing.
Oberwetter should not have danced in the Memorial and her arrest after refusing to abide by law enforcement should occasion no outrage. That said, while it the protesters were engaged in an illegal protest, it's a good thing they did - not for Oberwetter's benefit but for the rest of us.