A federal appeals court on Tuesday determined that the city of Washington, D.C. had inconsistently applied its “defacement” regulations when addressing anti-abortion organizations.
The court found that city officials were more severe with pro-life demonstrators compared to Black Lives Matter participants. As a result, a previous court’s decision to dismiss a complaint by the Frederick Douglass Foundation was overturned.
The D.C. Circuit, in its judgment, noted, “The government may not enforce the laws in a manner that picks winners and losers in public debates.” The statement emphasized, “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.”
Following the arrest of two pro-life activists on August 1, 2020, for chalking “Black Pre-Born Lives Matter,” the Frederick Douglass Foundation and Students for Life of America initiated legal proceedings against the city.
The court’s record stated, “In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim ‘Black Lives Matter’.” The document also pointed out the contrast, “During the same summer, District police officers arrested two pro-life advocates… The organizers… the Frederick Douglass Foundation and Students for Life of America (collectively ‘the Foundation’), sued.”
The foundation claimed that the arrests contravened the protesters’ First and Fifth Amendment rights. While they conceded that the chalking was against city rules, they contended that the selective enforcement of these rules was unconstitutional. The organization used the city’s apparent acceptance of Black Lives Matter graffiti in 2020 as proof of this selective enforcement.
The earlier dismissal of the foundation’s lawsuit by a lower court was overturned by the appeals court on Tuesday. The court stated, “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.”
Subsequent steps are expected in the case.
Erin Hawley, VP of the Center for Life and Regulatory Practice with Alliance Defending Freedom (ADF), which is representing the case, expressed satisfaction with the decision.
“Washington officials can’t censor messages they disagree with,” she said. “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.”
She further emphasized that every American should be allowed to voice their stance on significant societal and political matters.