A federal appeals court ruled Tuesday that pro-life activists arrested for sidewalk chalking outside a Planned Parenthood during the Black Lives Matter heyday were likely victims of viewpoint discrimination, reviving a case that a lower court had dismissed.
The U.S. Court of Appeals for the D.C. Circuit sided in a 3-0 decision with the Frederick Douglass Foundation and Students for Life of America, the pro-life groups behind the August 2020 protest at which two students were arrested for writing “Black Preborn Lives Matter” in chalk on the sidewalk.
Both were accused of defacing public property. Given that Black Lives Matter protesters had been allowed to paint and chalk messages on the streets that summer without punishment, the appellate court said there was merit in the pro-life groups’ claim of selective enforcement.
“We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance,” Judge Neomi Rao said in the 42-page opinion. “We therefore reverse the dismissal of the Foundation’s First Amendment claim and remand for further proceedings.”
Judge Rao, a Trump appointee, affirmed the U.S. District Court’s dismissal of the equal protection violations, saying the foundation “has not plausibly alleged invidious discrimination by District officials.”
“Discriminatory motive, however, is not an element of a First Amendment free speech selective enforcement claim,” said Judge Rao. “The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive.”
The decision marks a victory for pro-life activists who had accused the District of violating their First Amendment rights.
“Washington officials can’t censor messages they disagree with. The right to free speech is for everyone, and we’re pleased the D.C. Circuit agreed that the Frederick Douglass Foundation and Students for Life should be able to exercise their constitutionally protected freedom to peacefully share their views the same as anyone else,” said Erin Hawley, Alliance Defending Freedom senior counsel, who represents the pro-life organizations.
Kristan Hawkins, president of Students for Life of America, called the unanimous decision “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,” said Ms. Hawkins. “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.”
J.R. Gurley, president of the Frederick Douglass Foundation’s Virginia chapter, said the District “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 appeals court drew a sharp contrast between the reaction to the mass Black Lives Matter protests drawing thousands of demonstrators who painted and chalked streets, sidewalks and storefronts, and the small pro-life demonstration in front of the Planned Parenthood clinic on 16th Street NW.
“In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim ‘Black Lives Matter,’” said Judge Rao. “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 decision said.
The pro-life groups said they were given verbal permission by a city official to paint “Black Preborn Lives Matter” in front of the clinic, as long as they did so in washable tempera paint, yet six police cars greeted them when they turned up for the protest.
“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,” said Judge Rao.
The Office of the U.S. Attorney for the District of Columbia dropped the misdemeanor defacement charges against the two students, Warner DePriest and Erica Caporaletti, in October 2021.
Concurring with Judge Rao were Judges Robert L. Wilkins, an Obama appointee, and J. Michelle Childs, a Biden appointee.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.