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“It is antithetical to a free society for the government to give ‘one side of a debatable public question an advantage in expressing its views to the people’… ‘[G]overnment favoritism in public debate is so pernicious to liberty and democratic decisionmaking’ that viewpoint discrimination will almost always be “rendered unconstitutional.”
–JUDGE NEOMI RAO, D.C. COURT OF APPEALS
The United States Court of Appeals for the District of Columbia Circuit delivered a major victory on Tuesday for pro-life activists who were arrested in 2020 for using temporary chalk to paint the phrase “Black Pre-born Lives Matter,” even while thousands who painted pro Black Lives Matter phrases all over the city were never confronted or arrested by police.
The appellate court reversed a decision by a U.S. district court, allowing a complaint brought by pro-life activists to go forward. The case involves two pro-lifers who were arrested for painting the message “Black Pre-born Lives Matter” on the sidewalk outside a Planned Parenthood clinic in Washington D.C. The organizers of the protest, Students for Life of America (SFFA) and the Frederick Douglass Foundation, argued that the city of D.C. is guilty of unequal enforcement of the city’s defacement ordinance due to the viewpoint of the pro-life activists.
In the summer of 2020 protests and riots broke out across the United States under the auspices of outrage over alleged racial discrimination and police actions against black people. In D.C., protestors painted streets, sidewalks, construction equipment, and buildings with messages such as “Black Lives Matter” and “defund the police.” Mayor Murriel Bowser and other city leadership applauded the messages and commissioned a painting on a public street taking up a city block that read, “BLACK LIVES MATTER.”
Protestors then added “= DEFUND THE POLICE” to the city’s painting. No arrests were made for any of the graffiti.
Pro-life groups requested a permit to paint their message using washable chalk and even sent a letter to the mayor, who never answered. They later received verbal approval from a D.C. police officer, who explained that he believed Mayor Bowser had effectively opened up the streets for political messages.
Yet when the pro-lifers met to paint “Black Pre-Born Lives Matter” on a sidewalk, six police cars were already there. They ordered the protestors not to paint their views on the sidewalk. After two activists disobeyed, they were arrested. The Frederick Douglas Foundation and SFFA enlisted the legal help of Alliance Defending Freedom and filed suit, alleging their First Amendment rights had been violated.
A district court dismissed that suit, but a three-judge panel of the D.C. Court of Appeals overturned the decision. Quoting City of Madison Joint School District No. 8 v. Wisconsin Employee Relations Commission, Judge Neomi Rao, writing for the majority, began the court’s ruling by stating:
“The First Amendment prohibits government discrimination on the basis of viewpoint. ‘To permit one side … to have a monopoly in expressing its views … is the antithesis of constitutional guarantees.’”
The judges found that “The District all but abandoned enforcement of the defacement ordinance during the Black Lives Matter protests, creating a de facto categorical exemption for individuals who marked ‘Black Lives Matter’ messages on public and private property.”
The ruling noted that when protestors added their anti-police graffiti to the city’s painting, they did not receive a permit or consent and were not arrested by onlooking police officers and that the District government let the painting remain for months before cleaning it off the street.
“Over weeks and months, many individuals painted streets, sidewalks, and storefronts with graffiti and chalk espousing variations on the ‘Black Lives Matter’ message. Not a single permit was sought, and not one person was punished for violating the defacement ordinance. For months, the District allowed many of the Black Lives Matter markings, paintings, and drawings to remain on public property…yet allegedly no arrests were made for defacement that included the ‘Black Lives Matter’ message.”
By contrast, the pro-lifers “managed to write a single, small pro-life message in washable chalk before being arrested for violating the defacement ordinance.”
The court ruled that the District’s differential treatment did not match the level of culpability or enforcement value, stating,
“It is antithetical to a free society for the government to give ‘one side of a debatable public question an advantage in expressing its views to the people’… ‘[G]overnment favoritism in public debate is so pernicious to liberty and democratic decisionmaking’ that viewpoint discrimination will almost always be rendered unconstitutional.”
The panel concluded, “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.”
This case is clear discrimination. The city’s leadership implicitly expressed approval of the BLM protestors’ paintings by refusing to arrest or charge any protestors, leading at least one police officer to believe the defacement ordinance no longer applied to political messages on sidewalks. However, that same city leadership made it explicitly clear that they didn’t approve of the pro-life message when they proactively sent a group of police officers to arrest pro-lifers.
Several truths are clear in this situation: 1) Those on the political left will support the expression of viewpoints they agree with even if they violate the law, while suppressing other messages they don’t like; and 2) despite claims that pro-lifers are violent extremists, government leaders, police, and the left know that pro-lifers are peaceful and that arresting them will not lead to violence or put anyone in danger.
There’s a third truth that should not be overlooked, however, and that is that this case is, and always was, as much about abortion as free speech. While the left enthusiastically embraces the slogan “Black Lives Matter,” they will do everything they can to shut down and censor the slogan “Black Pre-Born Lives Matter.” Abortion in the U.S. has always had a racial component, starting with the eugenicist views of Margaret Sanger, the founder of Planned Parenthood, but that component has played out as intended: More than 20 million black babies have been aborted since 1973, a horror which would qualify as a genocide and a racial injustice in any other circumstance; even now, black women are nearly four times as likely as white women to have an abortion.
So this ruling, while not final, is a major step forward for justice and a win for freedom of speech, not just because it upholds the First Amendment, but because it will allow the dissenting message that all black lives matter — even those who are still in the womb — to be heard and not be censored.
The Constitution safeguards the free speech rights of every American regardless of their view. Government is also blocked from the discriminatory enforcement of laws. The D.C. Court of Appeals ruled with wisdom, common sense, and righteousness. Hopefully, all other judges who hear this case will follow their lead and see this miscarriage of justice for what it was: targeting Americans based on their beliefs.
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