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,