Appeals Court Rules DC Used 'Defacement' Law to Selectively Punish Pro-Life Activists

A three-judge panel of the DC Circuit Court of Appeals ruled on Tuesday that the District of Columbia had used "anti-defacement" ordinances to punish pro-life activists while refusing to enforce the law on Black Lives Matter rioters. In earlier court action, a federal judge had dismissed the claim by the Frederick Douglass Foundation.

The 3-0 decision written by Trump appointee Neomi Rao found that the punishment meted out to the pro-life activist was selectively applied based upon their political viewpoint.

The government may not enforce the laws in a manner that picks winners and losers in public debates. 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 events leading to this appeals court decision began on August 1, 2020, when two pro-life activists were arrested for writing "Black Pre-Born Lives Matter" in chalk on a DC sidewalk. As the court notes in its opinion, this arrest took place in the context of massive street demonstrations in DC that resulted in a lot of things being covered in paint, but no one in the DC government cared.

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.

Making matters worse for the District of Columbia was that the group had applied for and received a permit to protest in front of the Planned Parenthood clinic.

In the lead up to the pro-life rally, the Foundation applied for and received a permit to assemble. In a conversation about the permit, a police officer gave the Foundation verbal permission to paint its “Black Pre-Born Lives Matter” message on the street. The officer explained that he believed Mayor Bowser had effectively opened up the District’s streets for political markings. The Foundation also sent a letter to Mayor Bowser asking to paint a mural and declaring it a constitutional right to do so. Mayor Bowser did not respond.
When the pro-life advocates arrived for their rally on August 1, six police cars and many police officers were waiting. The officers said the advocates could assemble in accordance with the Foundation’s permit, but if they painted or chalked their message on the sidewalk, they would be arrested for violating the defacement ordinance. Two students began to chalk “Black Pre-Born Lives Matter” on the sidewalk anyway. Despite the message being written in small, faint letters with washable chalk, the two students were arrested. The entire event was caught on video.

This action by the District of Columbia needs to be viewed through the lens of the Department of Justice ratcheting up legal pressure on pro-life activists in the wake of the Dobbs vs. Jackson Women't Health decision that reversed Roe vs Wade. In 2022, federal charges were brought against 26 pro-life activists for violations that had been ignored in the past.