A federal appeals court issued a major free speech ruling on Tuesday stating Washington, D.C., “selectively enforced” defacement ordinances against pro-life advocates while allowing far-Left protestors to graffiti “Black Lives Matter” messaging on city streets during the Summer of 2020.
“The government may not enforce the laws in a manner that picks winners and losers in public debates,” the U.S. Court of Appeals for the D.C. Circuit said in its 42-page opinion. “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.”
The appeals court reversed a lower district court’s decision, which dismissed a First and Fifth Amendments lawsuit filed against the nation’s Capital by the Frederick Douglass Foundation and Students for Life of America.
The complaint alleged that D.C. authorities violated the constitutional rights of two pro-life activists by arresting them on August 1, 2020, for chalking “Black Pre-Born Lives Matter” on a public sidewalk outside of a local Planned Parenthood facility. Although the groups acknowledged the graffiti violated the ordinance, they alleged that authorities mistreated the two activists in comparison to thousands of protestors who were free to deface streets, sidewalks, and storefronts with paint and chalk with anti-police messages and other BLM-related content during the same summer.
“The markings were ubiquitous and in open violation of the District’s defacement ordinance, yet none of the protesters were arrested,” Judge Neomi Rao wrote in the 42-page opinion for the court.
Rao’s opinion for the court in Frederick Douglass Foundation v. District of Columbia was joined by Judges J. Michelle Childs and Robert L. Wilkins, who concurred in reversing the district court’s dismissal of the Foundation’s First Amendment claim, but affirmed the dismissal of an equal protection claim and remanded the case for further proceedings.
“We affirm the district court’s dismissal of the Foundation’s equal protection claim because the Foundation has not plausibly alleged invidious discrimination by District officials,” the court wrote. “Discriminatory motive, however, is not an element of a First Amendment free speech selective enforcement claim.”
“The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive,” the opinion continued. “We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance.”
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Alliance Defending Freedom (ADF) attorneys representing members of the Frederick Douglass Foundation and Students for Life of America chalked up the free speech victory at the D.C. Circuit, affirming the group’s rights to “exercise their constitutionally protected freedom to peacefully share their views the same as anyone else.”
“Washington officials can’t censor messages they disagree with,” ADF Senior Counsel Erin Hawley, vice president of the ADF Center for Life and Regulatory Practice, said in a news release. “Every American deserves for their voice to be heard as they engage in important cultural and political issues of the day.”
Frederick Douglass Foundation Virginia Chapter President J.R. Gurley said in a news release that D.C. officials “shouldn’t allow some groups to participate in the public forum and shun others from doing so just because city officials disagree with their viewpoint.”
“The First Amendment protects our right to peacefully share our pro-life message in Washington, D.C. without fear of unjust government punishment and thankfully, the D.C. Circuit agreed,” Gurley said.
President of Students for Life of America, Kristan Hawkins, called the court’s unanimous decision favoring free-speech rights for pro-life students “very encouraging.”
“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,” Hawkins said. “Free speech rights you’re afraid to use don’t really exist, and we will keep fighting for the rights of our students to stand up for the preborn and their mothers.”