A federal appeals court delivered a major free speech victory on Tuesday, ruling that Washington, D.C., officials “selectively” enforced statute to arrest pro-life activists but not Black Lives Matter protesters in 2020.
In the summer of 2020, thousands of Black Lives Matter protesters flooded D.C., and over several weeks, they covered the streets, sidewalks, and storefronts with paint and chalk. While these markings violated the District’s defacement ordinance, no protesters were arrested. However, district police officers were quick to arrest two pro-life advocates in a smaller protest for chalking “Black Pre-Born Lives Matter” on a public sidewalk outside of a D.C. Planned Parenthood facility.
“The government may not enforce the laws in a manner that picks winners and losers in public debates,” reads the D.C. Circuit opinion penned by Judge Neomi Rao, reversing a lower court’s decision. “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 First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive,” the three-judge panel ruled: “
We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. We therefore reverse the dismissal of the Foundation’s First Amendment claim and remand for further proceedings.
Alliance Defending Freedom (ADF) filed the lawsuit on behalf of members of the Frederick Douglass Foundation and Students for Life of America. The three-judge panel was comprised of circuit judges Robert Wilkins, Neomi Rao, and Michelle Childs.
ADF Senior Counsel Erin Hawley, vice president of the ADF Center for Life and Regulatory Practice, who argued before the court on behalf of the pro-life organizations, said:
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.
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 issued a statement praising the court’s decision.
“The city 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,” Gurley said. “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.”
Students for Life of America President Kristan Hawkins also celebrated the decision and noted that “free speech rights you’re afraid to use don’t really exist…”
“It’s very encouraging that there was a unanimous 3-0 decision in favor of the free speech rights of pro-life students, peacefully protesting in our nation’s capital,” Hawkins said, continuing:
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. 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, and against the predatory abortion industry led by Planned Parenthood.
The case is Frederick Douglass Foundation v. District of Columbia, No. 21-7108, in the U.S. Court of Appeals for the District of Columbia Circuit.