A federal appeals court has ruled that officials in the Washington D.C. local government could be sued for selectively enforcing a property defacement statute to punish pro-life activists who wrote a pro-life message in chalk on a city sidewalk, while ignoring similar but more permanent actions by Black Lives Matter (BLM) activists.
In the summer of 2020, D.C. police arrested two pro-life activists for chalking “Black Pre-Born Lives Matter” on a public sidewalk. The arrests came as BLM activists were painting their own activist messages throughout the city—but without facing similar enforcement measures.
The Frederick Douglass Foundation and Students for Life filed a lawsuit against the city in the D.C. Federal court in November of 2020. While the D.C. defacement statute is ostensibly neutral and designed to prevent vandalism, the two pro-life groups insisted that the way the city enforced the law was not neutral and punished them for writing messages in easily removable washable chalk, while ignoring numerous instances of BLM activists writing their own messages in permanent paint. The plaintiffs alleged the city’s selective enforcement of the statute violated their First Amendment and Fifth Amendment rights.
District Judge James Boasberg—an appointee of President Barack Obama—dismissed the initial lawsuit in September of 2021, but the two pro-life organizations appealed the decision. On Tuesday, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit unanimously decided to partially reverse the lower court’s decision. The plaintiffs can now proceed once more in the lower court with their First Amendment claims.
“The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive,” Circuit Judge Neomi Rao, an appointee of President Donald Trump, wrote on Tuesday (pdf). “We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance.”
DC ‘All But Abandoned’ Enforcement on BLM: Judge
Judge Rao noted that D.C. Mayor Muriel Bowser had shown her support for BLM activists and ordered city workers to paint the message “Black Lives Matter” in yellow paint along a city street. The message was later modified by BLM activists, who added “Defund the Police” in yellow paint on the same street, connecting it to the “Black Lives Matter” street mural with an equals sign.
“Police officers watched as the alteration took place and did nothing to stop it. Although the Black Lives Matter advocates did not seek a permit or otherwise receive consent, they were neither arrested nor charged under the defacement ordinance,” Judge Rao wrote. “In fact, the District left the addition in place for months, eventually removing it in mid-August.”
She noted that BLM messages popped up in various other places throughout the city, including on streets, sidewalks, and on store fronts. In at least one case, a BLM message was graffitied onto scaffolding outside a Chamber of Commerce building.
“The District all but abandoned enforcement of the defacement ordinance during the Black Lives Matter protests, creating a de facto categorical exemption for individuals who marked ‘Black Lives Matter’ messages on public and private property,” Judge Rao wrote.
She also noted that the pro-life activists had sought permission to place their messages throughout the city. They reportedly reached out to Ms. Bowser’s office, but she did not respond. They also asked a police officer about their plans to display a message in chalk, and he reportedly told them they could write their message because “he believed Mayor Bowser had effectively opened up the District’s streets for political markings.” While the pro-life activists sought permission, Judge Rao wrote that “not a single permit was sought, and not one person was punished for violating the defacement ordinance” with the BLM messages.
In seeking to dismiss the lawsuit, attorneys for the District of Columbia argued (pdf) that the plaintiffs “cannot show that they have a right to deface public property or that the District’s application of the Defacement Ordinance violates plaintiffs’ constitutional or statutory rights.”
Judge Rao still found that the pro-life groups had enough evidence to demonstrate a First Amendment violation.
NTD News reached out to the attorneys who represented the District of Columbia in the case, but they did not respond by the time this article was published.
Pro-Life Activists Celebrate Appeals Court Ruling
The Frederick Douglass Foundation and Students for Life celebrated the Tuesday ruling, along with the Alliance Defending Freedom (ADF), a legal advocacy group that supported their lawsuit.
“The right to free speech is for everyone, and we’re pleased the D.C. Circuit agreed that the Frederick Douglass Foundation and Students for Life should be able to exercise their constitutionally protected freedom to peacefully share their views the same as anyone else,” said ADF Senior Counsel Erin Hawley.
Students for Life of America President Kristan Hawkins celebrated the unanimity of the appeals court’s ruling.
“It’s very encouraging that there was a unanimous 3-0 decision in favor of the free speech rights of pro-life students peacefully protesting in our nation’s capital,” Ms. Hawkins said. “Viewpoint discrimination is un-American, and, as the case proceeds, we look forward to learning more about how D.C. officials picked winners and losers in their enforcement. Free speech rights you’re afraid to use don’t really exist.”