News and Commentary

Pro-Life Students Arrested For “Black Preborn Lives Matter” Chalking… Now They’re Suing The City

The city of Washington, D.C. will be brought to court for alleged First Amendment violations.

Alliance Defending Freedom (ADF) filed a lawsuit this week on behalf of Students for Life of America (SFLA) and the Frederick Douglass Foundation after pro-life students were arrested for legally writing their message on the streets of the District of Columbia in August.

While a whole plaza is named and permanently painted with “Black Lives Matter” (BLM), pro-life students were barred from writing “Black Preborn Lives Matter” in chalk outside of a Planned Parenthood building, despite the fact that they’d received a permit to do so from the city.

The students’ chalk message,“Black Preborn Lives Matter,” served to address the fact that unborn children of minority mothers have a higher likelihood of being aborted, according to this Supreme Court amicus curiae brief.

According to SFLA, the group had obtained a permit from the city to peacefully protest with the use of temporary paint on sidewalks, but police said otherwise, warning that they’d be arrested for the use of temporary paint, despite the fact that pro-BLM protesters had been allowed to use paint for their “Defund The Police” message.

In an attempt to comply with police, the pro-life activists instead used chalk, as it was far easier to remove, but the authorities still wouldn’t allow it.

As video shows, after refusing the orders of police to stop, two individuals clad in “Black Preborn Lives Matter” shirts were handcuffed and led away by D.C. Police.

“Two students were arrested trying to express in chalk what they were not allowed to say in paint,” said Students for Life of America President Kristan Hawkins. “That kind of viewpoint discrimination cannot be allowed to continue unchallenged.”

In a letter sent to Mayor Muriel Bowser before the incident, Hawkins noted:

Your original decision to paint ‘Black Lives Matter’ on the street is government speech. However, your decision to allow protestors to paint ‘Defund the Police’ opened the streets up as a public forum. You are not permitted to discriminate on the basis of viewpoint in making determinations relating to public assemblies in public fora.

Viewpoint discrimination is the unconstitutional practice of a government prohibiting certain speech and expression on the basis of the message it promulgates. 

Such discrimination has been defined by the Supreme Court on multiple occasions in tandem with interpreting the extent of First Amendment rights.

In the opinion of the Court Police Department of Chicago v. Mosley (1972), Justice Thurgood Marshall wrote “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Years later, the unconstitutionality of viewpoint discrimination was solidified in Rosenberger v. Rector and Visitors of the University of Virginia (1995). 

Justice Anthony Kennedy delivered the opinion of the court, stating, “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”

Justice Kennedy further noted viewpoint discrimination as an “egregious form of content discrimination.”

“Because of the city’s actions, Frederick Douglass Foundation and Students for Life of America weren’t able to participate in the public square as other groups have,” said Legal Counsel Elissa Graves of ADF, the group heading up the lawsuit. “The government can’t discriminate against certain viewpoints by allowing some voices to be heard while silencing others.”

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