Updated May 29 with additional information provided in an interview with one of the men arrested.

WASHINGTON (May 28, 2011) – Police arrested five people at the Jefferson Memorial in Washington D.C. Saturday.

Their crime?

Silent dancing.

Eddie Dickey, 37, was among those arrested. He said police charged him with “dancing in a restricted area” and held him in jail for about 2.5 hours.

A group of about a dozen people showed up at the memorial to protest a recent court ruling upholding the 2008 arrest of Mary Oberwetter.

Oberwetter was part of a group of 18 people who went to the Jefferson Memorial in April of that year to celebrate the third president’s birthday. Just before midnight, the flash mob began dancing silently to honor “the individualist spirit for which Jefferson is known.”  U.S. Park Police warned the group to stop and ultimately arrested Oberwetter, charging her with demonstrating without a permit and interfering with an agency function.

Those charges were later dropped.

But Oberwetter challenged the arrest in court, arguing that it violated her First Amendment right to free expression. In January 2010, U.S. District Judge John D. Bates threw out the lawsuit.

“The purpose of the memorial is to publicize Thomas Jefferson’s legacy, so that critics and supporters alike may contemplate his place in history,” Bates wrote. “The Park Service prohibits all demonstrations in the interior of the memorial, in order to maintain ‘an atmosphere of calm, tranquility, and reverence.’”

Courts consider memorials and monuments “nonpublic forums”, meaning they are not traditionally open for public debate, or dedicate to policy or public discourse. The judge’s ruling follows Supreme Court precedent establishing that the government “has the power to preserve the property for the purpose to which it is lawfully dedicated.” As long as restrictions on expression don’t favor or disfavor any particular group, they are generally allowed.

A federal appeals court upheld the lower court in a ruling released on May 17.

But some disagree with the courts, arguing that restrictions at the memorials clearly violate the constitutional right to free expression Jefferson embodied, and a small group set out Saturday afternoon to dance under his statue’s shadow in protest.

Several cameras captured the incident on video. After warning a group that they would face arrest and would likely spend the entire weekend in jail if they danced inside the memorial, police cuffed a man and a woman who were embraced, swaying near the statue.

“The silent waltzing started while the cops were telling the rest of us not to dance,” Berin Szoka said.

The two initially arrested we not in the group warned.

Moments later, three officers roughly took Dickey and another man to the ground, as police were trying to cuff Dickey and the second dancer attempted to link arms with him.  A few yards away, a Park Police officer lifted a fifth man off the ground and body slammed him to the concrete when he refused to comply with demands to drop to his knees.

Witnesses identified the man body slammed as Adam Kokesh, an Iraqi War veteran and a former congressional candidate from New Mexico. Kokesh has a history of protesting, particularly U.S. involvement in Iraq.

As police dealt with Kokesh, Dickey stood back up and began dancing again, hands cuffed behind his back, until an officer grabbed him and forced him to sit cross legged on the floor.

Dickey said he thinks the police response was calculated to send a message, noting that the offense only warrants a ticket.

“It’s a cite and release,” he said. “It was special treatment for us. It was really surreal.”

But Dickey added the use of force didn’t really surprise him. In fact, he admits he expected it.

“Because I know how the state is. It’s about intimidation, coercion and the threat of force.”

As police subdued the dancers, the first man cuffed sat on a bench, yelling, “This is America.” Eventually an officer told him to shut up.

“I am not shutting up. You cannot shut me up. That’s not the way this works.”

At that point, police shut down the Jefferson Memorial and began moving people outside. A video shot by Szoka captures an officer putting his hands on a television cameraman and ushering him out of the memorial, emphasizing his request to leave the area with a slight shove to the back. Witnesses say the cameraman worked for Washington D.C. NBC affiliate channel 4.

After roughly shoving another bystander with a camera outside, the same officer then approaches Szoka.

“You’re not allowed to video record in here,” the officer says, apparently grabbing at the camera. For several seconds, the footage shows only feet, as Szoka appears to move away. When he raises the camera again from just outside the monument’s interior chamber, the officer issues another warning.

“If you continue to record, you will be arrested.”

Another video shows a police officer telling a man outside the inner chamber he is not allowed to film. When the man indicates he is with the press, the officer says, “It doesn’t matter.”

“They were just trying to cover their brutality,” Dickey said.

Tenth Amendment Center communications director Mike Maharrey said he found the treatment of those filming the incident particularly troubling.

“The police have no authority to stop people from filming in an area open to the general public. Granted, they can clear a crime scene and keep people from interfering. But to threaten somebody with arrest for video recording after they comply with a request to move back – cops have no authority to do that. Courts have consistently held that citizens and journalists alike have the right to record activities in public areas, particularly gathering information on public officers acting in official capacities,” Maharrey said. “The fact that the police were clearly trying to shut down coverage indicates to me they knew they had crossed the line in terms of force, and they didn’t want anybody to see it. But I guess you shouldn’t be surprised that officers arresting people engaging in a First Amendment protest would interfere with news gathering.”

The appeals court ruling held that dancing falls into the same category as others activities forbidden at memorials, such as picketing, speech making, and holding vigils or religious services, reasoning that such acts tend to create their own centers of attention and  distract from the atmosphere of solemnity.

Szoka said it was the police who disturbed the sanctity of the memorial.

“The dancers were just rocking out to whatever was on their iPod headphones.  So the whole thing was quite silent until the police started arresting people,” he said.

Dickey agreed, saying that if the police would have just let the group do its silent dance for 10 minutes, they would have gotten tired of it and left.

“They were the ones who created the disturbance.”

And he admitted the whole incident was ridiculous.

“And that’s the point of it. The whole thing is silly. The judge’s 26 page ruling was silly. Us going out there dancing – making fools of ourselves – was silly. And the police reaction was silly,” he said. “The whole thing was just insane.”

The arrests didn’t appear to deter the protesters. A Facebook event page indicates a second dance at the memorial is planned for June 4.

“In response to the ridiculous arrest of five peaceful demonstrators, a second day of Silent Dancing will commence next week on Saturday, June 4, at noon,” a post on the page says

“We need to stand firm and let the state know that we will not be intimidated. This is a peaceful, silent protest and is protected under our right to free speech.”

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.