Mere dancing is not per se prohibited in D.C.
However, demonstrations (including expressive dancing) are prohibited at the Washington Monument, Lincoln Memorial, the Jefferson Memorial, and the Vietnam Veterans Memorial 36 CFR 7.96(g)(3)(ii):
Demonstrations and special events are not allowed in the following other park areas:
(C) The Jefferson Memorial [...]
"Demonstration" is defined at 36 CFR 7.96(g)(1)(i) (emphasis mine):
The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. This term does not include casual park use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.
The case that tests the prohibition of expressive dancing at the Jefferson Memorial is Oberwetter v. Hilliard. Oberwetter was arrested for expressive dancing with a group of eighteen others at the Jefferson Memorial. Oberwetter argued that "Hilliard’s enforcement of the Park Service Regulations to prohibit her expressive dancing violated her First Amendment rights to free speech and assembly" (among other things). The district court granted Hillard's (the arresting officer) motion to dismiss. Oberwetter appealed to the DC Circuit, who affirmed the judgement of the district court.
The main issues:
- Does the prohibition on demonstration actually include dancing
- Does the First Amendment protect silent expressive dancing (i.e. is the regulation unconstitutional)
Expressive dancing is demonstration. There are two lines of reasoning that lead the DC Circuit here. Deference, and interpretation. The DC Circuit said:
Ordinarily, we “accord an
agency’s interpretation of its own regulations a high level of
deference, accepting it unless it is plainly wrong.”
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.
This regulation does not violate the First Amendment. The Jefferson Memorial is a "nonpublic forum" (one of three general categories of spaces for First Amendment analysis). The DC Circuit said:
National memorials are places of
public commemoration, not freewheeling forums for open
expression, and thus the government may reserve them for
purposes that preclude expressive activity.
The DC Circuit lays out the Supreme Court precedent for this conclusion in pages 8-13 of the opinion.
Eugene Volokh (a well respected First Amendment academic) wrote some short commentary on this case, saying:
That sounds quite correct to me. The government as property owner has (and must have) considerable authority to restrict speech on its own property (setting aside traditional public fora, such as sidewalks and parks, as well as fora deliberately opened for public expression). The Supreme Court has held that as to such nonpublic forum property, the government’s authority is indeed quite broad, so long as the restriction is reasonable and viewpoint-neutral.