A federal appeals court on Tuesday ruled that the city of Washington, D.C., disproportionately penalized pro-life advocates and showed leniency toward Black Lives Matter protesters for defacement offenses.
“In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim ‘Black Lives Matter,'” the court wrote in its decision. “Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District’s defacement ordinance, yet none of the protesters were arrested.”
“During the same summer, District police officers arrested two pro-life advocates in a smaller protest for chalking ‘Black Pre-Born Lives Matter’ on a public sidewalk. The organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America (collectively ‘the Foundation’), sued,” the opinion said.
The lawsuit, filed in November 2020 by religious liberty legal advocacy non-profit Alliance Defending Freedom, alleged that D.C. police discriminated against the pro-life groups by prohibiting them from chalking messages on the sidewalk. BLM protesters were permitted to chalk their own messages without punishment during the summer riots following the murder of George Floyd, the lawsuit argued.
The plaintiffs, the Frederick Douglass Foundation and Students for Life of America, took legal action after two pro-life activists, including a staff member of the latter organization and a college student, were arrested on August 1, 2020 after attempting to write “Pre-born Black Lives Matter” outside a Washington, D.C., Planned Parenthood location. The two protesters proceeded despite a warning from police, after which they were approached by officers and placed in handcuffs.
At the time, SFLA president Kristen Hawkins claimed the group had applied for and received from police a permit to hold an assembly outside the clinic. She also claimed she had requested permission on July 2o to paint the message from District Mayor Muriel Bowser, but did not receive a response.
The plaintiffs accused the city of applying a double standard with selective enforcement and stifling their free speech.
“The District of Columbia, like many American jurisdictions, prohibits the defacement of public property…While such laws are intended to prohibit criminal activity, they may not be used as a tool to silence disfavored speech. But this is precisely what the District and the Defendants have done,” the suit said.
The federal appeals court on Tuesday reversed a lower district’s court rejection of the lawsuit, agreeing with the plaintiffs that they were treated unfairly by local police in their enforcement of defacement laws.
“The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive. We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance,” the court wrote.