Sunday, May 29, 2011

Some thoughts on the arrests at the Jefferson Memorial

Yesterday, five people were arrested inside the Jefferson Memorial for silently dancing. A group of about a dozen showed up to protest a recent court ruling upholding the governments right to ban certain expression at memorials.
If you have not heard about this, you can read the story and watch a video here.

The event stirred a lot of controversy, with folks coming down on every side of this multifaceted issue. Some praised the protestors for standing up for our free speech rights. Others condemned them as rabble-rousers, looking for trouble and finding it. As a result, several people thought the police were completely justified in their response. Others argued that the police actions illustrate a movement toward a police state in the U.S.

After contemplating the incident for about 24 hours, I thought I would share a few random thoughts.

First, I basically agree with the court decision. The First Amendment was never intended as a carte blance right to say whatever whenever. When the framers drafted the amendment, a well-defined understanding of what “free speech” meant already existed. For instance, slander was a punishable offense, as was “blasphemy” and “lewdness.” So the framers clearly didn’t mean all speech was permitted at all times.

In essence, the judges in the memorial case followed precedent, allowing the government to limit speech, keeping with the “purpose” of the place. A memorial serves as a place of honor and solemnity, and regulating expression to maintain that purpose does not strike me as a particularly insidious thing. We limit speech in this was all the time. I can’t go hold a noisy protest in the middle of my street at 2 a.m. I would find myself under arrest for disturbing the peace – assuming a neighbor didn’t come out and whip my butt before the cops showed up.

Opponents will counter that a plain reading of the First Amendment makes no exception for places. And this is true. But I would counter that if we are going to appeal to a literal meaning, the First Amendment offers no protection for dancing. There exists no indication that the framers considered all "expression" speech. That is a construct of our court system through the evolution of First Amendment law. It becomes difficult to argue that the courts can create a construction protecting "dance" as expression and then turn around and say the court cannot create a construction limiting speech in certain places.

That said; the police overreacted. The force used in no way correlated to the crime. If the police were concerned about maintaining decorum at the monument, they certainly botched that. They should have just let the group do its little dance (I doubt anyone would have noticed anyway. It was of course “silent”) and then cited them after the fact. But I suspect the police intended to make a point, just like the protestors.

I found the treatment of those filming the event particularly troubling. The police tried to shut down videotaping, threatening at least one man with a camera with arrest if he continued to record. That indicates to me the officers knew they were over the line and didn’t particularly want anybody to see it.

Courts have consistently held that police cannot stop anybody from filming as long as they remain in an area open to the general public. The police have the right and authority to clear a "crime" scene, for their own safety and the safety of bystanders. But once a person complied and was outside of the restricted area, he had every right to continue recording. Threatening arrest for filming was a clear violation of press rights.

I wonder if the camera man working for the local NBC affiliate lodged any protest. He was shoved out of the memorial and that was way out of line. There really wasn’t any reason to clear everybody out. The situation was well in hand at that point. Again, it appears the police wanted to limit their exposure. That is a dangerous thing. Nasty stuff happens in secret – thus the importance of a free press.

And by the way, press means every citizen. You don’t have to be a member of some secret club to enjoy the rights of a free press.

Finally, I commend the protestors. Even though don’t agree with their position from a constitutional standpoint, I do respect the fact that they stood up for what they believe. They didn’t just submit. And the reaction taught us a valuable thing about the police and how they handle such situations – pretty darn poorly.

The whole incident was rife with irony. Police arrest citizens exercising their rights in the shadow of the statue of a man who wrote, "Governments are instituted among Men, deriving their just powers from the consent of the governed."

It appears these folks don't consent.


  1. A friend of mine goes every year to a WWII memorial on his great grand fathers birthday and dances in celebration of one of America's fallen heroes who was a Navajo Code Talker. By the ruling of this judge he could and or should be arrested? I can see the various sides to the argument but much like using a sledge hammer to build a doll house, police are not readers of law they are enforcers. They were told it was not legal and reacted over zealously to the situation based on a perceived level of intent from said protestors. Force escalation in this case did not help the situation because it was civil disobedience, luckily it didn't go all the way to shooting someone, this time.

  2. You make a good point James. Issues like this pose a lot of difficulties. Should your friend be arrested. Clearly not. Could he be under the law. Apparently.

    When in doubt, I try to side with freedom. The struggle comes in figuring out where on proverbial nose ends and the other begins. The example I used of a noisy demonstration on my street at 2 a.m. is pretty simple. What constitutes a disturbance in a monument is not. And as I think about it, perhaps there SHOULDN'T be any blanket regulations on expression. Could we not protect the sanctity of the memorials through normal disturbing the peace regulations (which the dancers clearly weren't doing - until the cuffs came out.)

    Pretty heady stuff. And therein lies the reason that it was probably good that this happened.

  3. I wrote a post with a different take here:

    I agree that they have a right to disagree but I think they could have approached it through legal means initially and they chose not to. I think it was (and again tomorrow, will be) a publicity stunt, organized by Code Pink and Friends.