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A federal appeals court ruled Tuesday that allegations of discriminatory "selective enforcement" of defacement laws against pro-life protesters in Washington, D.C., over their chalk message on a public sidewalk, were plausible, and that the case could proceed.
The case concerned allegations that city authorities treated pro-life protesters more harshly than Black Lives Matter activists. The appeals court reversed a lower court's dismissal of the complaint filed by the Frederick Douglass Foundation.
The case has been remanded to the district court for further proceedings, where the city will have the opportunity to introduce its own evidence to counter the pro-life protesters' claims.
"The government may not enforce the laws in a manner that picks winners and losers in public debates," the D.C. Circuit wrote in its opinion reversing the decision of a lower court in The Frederick Douglass Foundation v. District of Columbia. "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."
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The Frederick Douglass Foundation and Students for Life of America filed the lawsuit against the city after two pro-life activists were arrested on Aug. 1, 2020, for chalk graffiti reading "Black Pre-Born Lives Matter."
"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."
The opinion continues, "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 organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America (collectively 'the Foundation'), sued."
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The foundation alleged that the protesters' First and Fifth Amendment rights were violated — the group acknowledged that the chalk graffiti violated city ordinances but argued Washington, D.C.'s selective enforcement of the laws was unconstitutional.
The foundation pointed to the government's tacit approval of Black Lives Matter-themed graffiti throughout the city during the summer of 2020 as evidence that the ordinances were being selectively enforced.
Police arrested pro-life protesters on Aug. 1, 2020 for drawing with chalk outside an abortion facility in Washington, DC. (Alliance Defending Freedom)
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A lower district court previously dismissed the foundation's lawsuit — but the appeals court ruled Tuesday to overturn that dismissal.
"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," the court wrote.
"Defund the Police" is painted on the street in Black Lives Matter Plaza near the White House in Washington, D.C., U.S. ((Photographer: Stefani Reynolds/Bloomberg via Getty Images))
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"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 VP of the Center for Life and Regulatory Practice with Alliance Defending Freedom Erin Hawley.
The ADF is providing counsel on the case.
She added, "Every American deserves for their voice to be heard as they engage in important cultural and political issues of the day."
The Office of the Attorney General for the District of Columbia declined comment.
EDITOR'S NOTE: This report has been updated to clarify the federal appeals court's ruling.
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