“A Monopoly in Expressing its Views”: D.C. Circuit Hands Down Major Free Speech Victory for Pro-Life Group

The U.S. Court of Appeals for the D.C. Circuit has handed down a major victory for free speech against the District of Columbia.  In Frederick Douglass Foundation v. District of Columbia, Judge Neomi Rao reversed district court judge James E. Boasberg who dismissed the challenge by pro-life protesters who alleged that they were treated differently from Black Lives Matter (BLM) protesters. The selective enforcement of city ordinances gave what Judge Rao called “a monopoly in expressing its views . . . the antithesis of constitutional guarantees.”

The contrast in these cases was raised by a few commentators and sites in prior years. In the summer of 2020, the city allowed thousands of Black Lives Matter protesters to take over streets in D.C. without any permit. The police watched as protesters wrote slogans and slurs on stores, streets, and sidewalks with paint and chalk. No one was arrested.

However, later two pro-life advocates in a protest in front of a D.C. Planned Parenthood facility were immediately arrested when they chalked “Black Pre-Born Lives Matter” on a public sidewalk.

Chief Judge Boasberg previously held that they had no right to challenge the selective enforcement of the laws. They simply had to plead guilty and accept that their views were not given the same official tolerance.

Judge Rao reversed the trial court and said this is precisely what the First Amendment is meant to prevent. The D.C. Circuit noted that such selective prosecution cases are based on one of the hardest claims to prove: “Selective enforcement claims must clear a high hurdle. Because the lawful exercise of prosecutorial discretion does not violate the Constitution, disparate enforcement of a neutral ordinance based on viewpoint is unlawful only when the prosecutorial factors are similar, and ‘unlawful favoritism’ remains the predominant explanation for the government’s targets.”

While reaffirming the ruling under the Equal Protection Clause, the court reversed on free speech grounds:

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.” City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm’n, 429 U.S. 167, 175–76 (1976). The protection for freedom of speech applies not only to legislation, but also to enforcement of the laws. This case concerns a constitutional challenge to the selective enforcement of the District of Columbia’s defacement ordinance against some viewpoints but not others.

In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim “Black Lives Matter.” 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. 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.

Viewpoint discrimination, whether by legislative enactment or executive action, violates the First Amendment. “Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 96 (1972). We hold the Foundation has plausibly alleged the elements of a free speech selective enforcement claim. We may reasonably infer from the Foundation’s complaint, first, that its members were similarly situated to other protesters who were not arrested and, second, that the District engaged in viewpoint discrimination by enforcing the defacement ordinance against individuals chalking “Black Pre-Born Lives Matter” but not against individuals painting and chalking “Black Lives Matter.”

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others. During the summer of 2020, the District arrested individuals chalking “Black Pre-Born Lives Matter” on the sidewalk, while making no arrests against the many individuals marking “Black Lives Matter” on sidewalks, streets, and other property.”

Once again, the media virtually ignored the sharply different treatment and this case despite its obvious importance to free speech.  Moreover, the D.C. government spent considerable money and time to defend its right to arrest certain protesters while allowing others to commit the same acts.

Here is the opinion: Frederick Douglass Foundation v. District of Columbia,

150 thoughts on ““A Monopoly in Expressing its Views”: D.C. Circuit Hands Down Major Free Speech Victory for Pro-Life Group”

  1. Edward
    “Being simple minded should not be a badge of honor.”

    Are you referring to the simple minded people who think that federal elections have anything to do with voting rights? It’s been turned over to the states, Period. There is absolutely NOTHInG that the Congress or the Executive can do about it.

    Of course the left has done a fine job of convincing simple minded people that “abortion rights” are on the ticket in federal elections. And the right has done a poor job of shooting that stupidity down. The SCOTUS has ruled that there is nothing in the Constitution that gives the “right” or that empowers the federal government to make laws regarding it.

    IT IS DECIDED. The choice is in the hands of the several states. If voters are dumb enough to make that their most important issue at the state level, more power to them.

    Making it an issue at the federal level is a red herring, something the left is supremely good at.

  2. ” Pro life” is going to lose the 2024 election, Just like they managed to lose the midterms. These self absorbed religitards can’t shut up and wait.. they have to virtue signal every election. Lose the battle and then lose the war. … as stealthy as a wet fart.

    1. Edward: Sorry to read
      that you are for baby killing and what’s worse is that you people vote. Disgusting 🤮

      1. I’m sorry you are a one trick pony who does not understand politics. Say a prayer, annoy your neighbors and lose another election.
        Being simple minded should not be a badge of honor.

    2. Actually you are wrong. We didn’t lose the election access of abortion. Polling shows that people are waking up and realize that the Nazis were more humane to many they executed than abortionists are. I’m NOT justifying the Nazis. I’m saying they didn’t rip people’s bodies apart while they were alive most of the time. That’s what they do in an abortion. They’ve shown on ultra sound the babies SCREAMING IN AGONY.

      Anyone that is pro abortion is no better than a person that would walk by a baby laying on a deserted street by itself crying. Don’t give me rape. Even pro abortion groups admit that rape is less than 1% of abortions. Life of the mother IS a different story. But it should be done HUMANELY.

  3. Why aren’t there public clearing houses where brilliant experts on the law could supply important information to litigants as a free government service? If I have a certain type of cancer, I can find wonderful resources online and elsewhere that offer a great deal of information that helps your average lay person to understand his illness. There is no such facility regarding the practice of law.

    A federal district court follows a system whereby its judges are chosen randomly to preside over cases. Exceptions are made rarely and only under specific circumstances, supposedly. Each judge is to have a list of people whose cases he may not touch.

    Try to take a look at that “system” in your district court. We have judges in the third district who sit on cases in which their good old buddies from law firms where they practiced law, consistently get those cases and rule favorably on them, making hundreds of millions of bucks for their pals. It is a rigged, fixed, totally corrupt, organized criminal mob, and it has gone on for decades.

    Your average boob has nowhere to go with this info. Even though every lawyer knows what is going on and is mandated to report it, it ain’t happening. Jon, our courts are so thoroughly corrupt, in a sense you are wasting your time teaching law and advocating positions. Much of what is decided by judges is for sale.

  4. In NYC the BLM slogans on the pavement were put there, not by protesters but by the city itself. Therefore it was not required to allow other viewpoints equal treatment. It’s well established that the government is entitled to have opinions of its own, and to express them, and is not required to express opinions it doesn’t want to.

    DC could have done the same thing by simply hiring the protesters who did the street painting, or simply by accepting them as volunteer city workers. Then it wouldn’t have this problem.

    1. Your wrong. It’s just like satanists get to put up their decorations next to the nativity.

      Or if a school allows one group to speak or rent the facility, they have to allow another group to do the same. The government does not get to stifle free speech.

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