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Free speech is not only for the politically favored

Government may not single out disfavored speech for discriminatory enforcement

The Black Lives Matter slogan, painted in bright yellow letters, appears on 16th Street in Washington, D.C., on June 25, 2020. Khalid Naji-Allah/Executive Office of the Mayor via Associated Press

Free speech is not only for the politically favored

In an important decision, Frederick Douglass Foundation v. District of Columbia, a unanimous three-judge panel from the Court of Appeals for the District of Columbia held that government may not selectively enforce its defacement laws in a way that discriminates against disfavored viewpoints. “It is antithetical to a free society,” the Court wrote, for government to accord “one side of a debatable public question an advantage in expressing its views to the people.”

The facts arise from the summer of 2020. As COVID-19 lockdowns gripped our nation, political unrest began to spread from Minnesota following the tragic death of George Floyd. As the Black Lives Matter movement invaded headlines, young people across America began to protest and even riot.

Predictably, Washington, D.C., was a hotbed of political activity. As the Court of Appeals explained, protestors flooded into District streets, painting and marking “Black Lives Matter” messages on public and private property. To show her support, Mayor Muriel Bowser commissioned a large street mural reading “Black Lives Matter” in permanent yellow paint on a public street. Shortly after that, protestors added their own political message—“Defund the Police”—also in permanent paint, to the mural.

The city’s ordinances clearly prohibit the defacement of public and private property, including District streets and sidewalks. Yet even though police officers “watched as thousands of messages were painted on the streets, sidewalks, and other public and private property,” plaintiffs in the case say not a single person was arrested for the BLM protestors’ repeated and clear violations of the city’s defacement ordinance.

The city’s attitude changed when the plaintiffs in the case, Students for Life and Frederick Douglass Foundation, decided to have a small protest of their own. Students for Life of America is the nation’s largest pro-life youth organization devoted to mobilizing young people to the pro-life cause. The Frederick Douglass Foundation is a nonprofit that “acts as a liaison between black, faith-based organizations” and elected officials and seeks to protect “black babies still in the womb.” During a small and peaceful rally approved and permitted by the City, two students decided to write—in washable chalk—“Black Pre-Born Lives Matter” on a public sidewalk outside of a Planned Parenthood. To D.C. authorities, the inclusion of the words “pre-born” warranted swift punishment. And the students were promptly arrested.

As the D.C. Circuit said, to permit one side “to have a monopoly in expressing its views” would be the “antithesis of constitutional guarantees.”

A little over three years later, those students have found a pathway towards justice. The D.C. Circuit ruled that the students may pursue their claims that the government violated the First Amendment by punishing them for chalking a disfavored political message while giving BLM protestors a free pass for painting favored messages. “The government may not enforce the laws in a manner that picks winners and losers in public debates,” the court stated, reversing a lower court decision that dismissed the pro-life students’ lawsuit.

In allowing the Plaintiffs’ First Amendment claims to go forward, the D.C. Circuit noted the importance of their claims. Without viewpoint-based selective enforcement claims, the unanimous panel warned that the First Amendment could become “an empty formality.” This is because the government could enact laws that are neutral on their face, but then enforce them only against individuals expressing messages with which government disagrees.

There is no question that the District could enforce its defacement ordinance and prohibit individuals from writing (even in chalk) on city streets. But what it may not do is to single out for punishment only disfavored views. This violates the Constitution. As the Court put it, “It would undermine the First Amendment’s protections for free speech if the government could enact a content-neutral law and then discriminate against disfavored viewpoints under the cover of prosecutorial discretion.”

This is a huge win for free speech—and a huge blow to government officials who want to censor viewpoints they disagree with. As the D.C. Circuit said, to permit one side “to have a monopoly in expressing its views” would be the “antithesis of constitutional guarantees.”

In this case, Students for Life and the Frederick Douglass Foundation sought to affirm life with a message of hope: God’s truth that every life is precious—from the womb to the twilight years. Church history is full of examples of Christians who boldly declared truth and hope in the face of government suppression. Fortunately, in America, the First Amendment forbids such government censorship, and the D.C. Circuit has kept the door open for more speech, not less.

—Erin Hawley argued before the U.S. Court of Appeals for the D.C. Circuit in Frederick Douglass Foundation v. District of Columbia.

Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and a law professor at Regent University School of Law.

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