Affirming dismissal of First Amendment challenge to National Park Service Regulations limiting and restricting protests -- such as plaintiff dancing "in place" within the Jefferson Memorial "while listening to music on headphones"; D.C. Circuit takes judicial notice of “the salient features of the Memorial" under FRE 201(b), in order to find that the memorial is a non-public forum and that the challenged regulations did not unreasonably restrict First Amendment expression, in Oberwetter v. Hilliard, _ F.3d _ (D.C. Cir. May 17, 2011) (No. 10-5078)
Judicial notice is codified in FRE 201. Designed to limit trial expenses and the time involved in producing proof of matters well within common knowledge or which can be readily obtained, both trial and appellate courts may take judicial notice. As noted by the Advisory Committee Note to FRE 201, judicial notice applies when "particular facts are outside of the area of reasonable controversy" so that not only is presentation of proof unnecessary, but there matter noticed is not a matter in which there is a high degree of dispute. Of course, all manner of adjudicative facts may be recognized by a count. In a recent case, the D.C. circuit noted, rather undramatically, that it was taking judicial notice of “the salient features of the [Jefferson] Memorial" under FRE 201(b) in order to resolve a case of dancing at the Memorial to Commemorate the nation's third president.
In the case, plaintiff Oberwetter alleged that the government violated her First Amendment rights by enforcing regulations that restricted expression at the Jefferson Memorial. In a complaint that was dismissed by the district court, the plaintiff alleged that "[a]t quarter to midnight on April 12, 2008, Oberwetter and seventeen friends entered the Jefferson Memorial to 'celebrate and honor the former President ... by ushering in his birthday with silent dance.'” Park Police officers soon ordered the dancers out when they observed the plaintiff and her companions "dancing ... inside the Memorial, a circular structure with a domed roof and colonnaded perimeter. Suffice to note that at the early hour in question, besides the plaintiff and her dancing companions, "there were very few visitors to the Jefferson Memorial at the time of the dancing.” Oberwetter, _ F.3d at __.
The plaintiff and her dancing colleagues danced silently in place -- each listening to music on headphones. But this made little difference to the park police. As noted by the court:
Although silent, Oberwetter's dancing was a conspicuous expressive act with a propensity to draw onlookers. True, it occurred close to midnight on a weekend, making it less likely that a crowd would gather. But the question is not whether her dancing was likely to attract attention at that particular time. As with the other prohibited activities of “picketing, speechmaking, marching, [and] holding vigils or religious services,” expressive dancing might not draw an audience when nobody is around. But the conduct is nonetheless prohibited because it stands out as a type of performance, creating its own center of attention and distracting from the atmosphere of solemn commemoration that the Regulations are designed to preserve.Oberwetter, _ F.3d at __.
The district court dismissed the plaintiff's suit, "there is no question that she had the right to dance in order to express her admiration for Mr. Jefferson. Of course she did. But the question this case presents is whether she had the right to perform her dance inside the Jefferson Memorial." The 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 Jefferson's legacy. Oberwetter v. Hilliard, 680 F.Supp.2d 152 (D.D.C.2010).
The D.C. Circuit affirmed the dismissal of the plaintiff's suit, recognizing
"that our country's many national parks are too vast and variegated to be painted with a single brush for purposes of forum analysis. 'Presumably, many national parks include areas—even large areas, such as a vast wilderness preserve—which never have been dedicated to free expression and public assembly, would be clearly incompatible with such use, and would therefore be classified as nonpublic forums.Oberwetter, _ F.3d at __ (citations omitted).
* * *In creating and maintaining the Jefferson Memorial in particular, the government has dedicated a space with a solemn commemorative purpose that is incompatible with the full range of free expression that is permitted in public forums."
In reaching this determination, the circuit explained that it was "mindful that forum determinations are typically fact intensive, and that we lack a factual record here because the district court dismissed this case on the pleadings. We press ahead nonetheless because the salient features of the Memorial are “generally known within [our] territorial jurisdiction” and “not subject to reasonable dispute,” under FRE 201(b). Oberwetter, _ F.3d at __
In taking judicial notice of the "salient features" of the memorial, the circuit added another case to those in which courts have noted some very interesting - but not particularly striking facts. This ranges from such things as that bread and cheese are a common food combination, as In re Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567 (Fed. Cir. 1984) ("The extent to which particular food products are deemed related will depend on the facts of each individual case. In the instant case, we take notice that the products 'bread' and 'cheese' are often used in combination. Such complementary use has long been recognized as a relevant consideration in determining a likelihood of confusion."), or the combustable nature of gasoline, as in United States v. Beldin, 737 F.2d 450, 454 (5th Cir. 1981) ("It is common knowledge, of which we may take judicial notice [under FRE 201] that gasoline, when ignited, not only burns but may explode.") (footnote omitted).