Court scolds D.C. for double standard on street messaging

A federal appeals court last week upheld the First Amendment rights of two organizations that sought to chalk a pro-life message on a Washington, D.C., city sidewalk in the summer of 2020. A lower court initially dismissed the case, but last week’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit will allow the case to proceed to trial.

In last Tuesday’s unanimous opinion, U.S. Circuit Judge Neomi Rao criticized the city’s “lopsided prosecutorial response” to Black Lives Matter protesters and pro-life protesters.

“The government may not enforce the laws in a manner that picks winners and losers in public debates,” wrote Rao, a Trump appointee, for a panel that included Obama appointee Robert Wilkins and Biden appointee Michelle Childs. “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.”

Students for Life of America and the Frederick Douglass Foundation sued D.C. Mayor Muriel Bowser in November 2020. They contended that the city had engaged in unconstitutional viewpoint discrimination by selectively enforcing an ordinance prohibiting defacement of public or private property.

According to the court order, Bowser—in the wake of George Floyd’s death in May 2020—commissioned the painting of a boldfaced, all-caps “Black Lives Matter” message that extended for a full city block. As government speech, that message was not at issue in the lawsuit. However, police then stood by as protesters unlawfully added an equal sign and “Defund the police” to the initial message.

Throughout the summer, protesters covered streets, sidewalks, and storefronts with similar messages in open violation of the city’s defacement ordinance. The protesters never obtained any permits for their actions. Nor did police issue any warnings or make any arrests. City officials allowed the activity to continue and messages to remain throughout the summer.

In contrast, pro-life organizations staged a much smaller protest in front of a Planned Parenthood abortion facility in August 2020. Unlike Black Lives Matter protesters, the groups applied for and received a permit to assemble. They also sent a letter to Mayor Bowser asking to paint a mural and declaring it a constitutional right to do so. Bowser did not respond.

When they arrived for their rally on Aug. 1, pro-life group members were met by six police cars and a large contingent of police officers. Officers told the groups they could assemble but would be arrested if they attempted to paint or chalk their message on the sidewalk. Two students chose to chalk “Black Pre-Born Lives Matter” on the sidewalk anyway. Despite the messages being written in faint, washable chalk, officials arrested and briefly detained the two individuals, though charges were later dropped.

“This lopsided prosecutorial response—several arrests for small, chalked pro-life messages and no arrests for widespread ‘Black Lives Matter’ messages—does not comport with the deterrence value or culpability associated with the number of protesters and the scope of defacement, suggesting improper selective enforcement,” Rao concluded.

Rao dismissed arguments by the city that the scale and intensity of the Black Lives Matter protests made enforcement impractical, noting that “the complaint includes allegations of non-enforcement at smaller and more discrete Black Lives Matter events that are not so easily distinguished.”

John Bursch, an Alliance Defending Freedom attorney who helped represent the pro-life organizations, called the court’s ruling a reaffirmation of free speech principles. “Free speech is for everyone, not just for those in power,” Bursch said. “And the government can’t pick and choose the messages that it … favors and censor the ones that it doesn’t like.”

Yet Bursch also said the case establishes that a free speech violation occurs even if the government’s action is not proven to be purposeful discrimination. “Even though you might have to show intent in a typical selective prosecution case, when you’re talking about vindicating your First Amendment rights, that intent is not required,” he said.

As the case heads back to the trial court for fact-finding, Bursch said he wants to explore what was going on in the mayor’s and police chief’s offices at the time the pro-life students were arrested. “Was it the mayor?” said Bursch. “Was it the police chief who directed those police officers to show up that day? And what justification did they have for doing that when this was just the small peaceful protests?”

Students for Life of America President Kristan Hawkins agreed in a statement: “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.”