Constitutional Law, Courts, Free Speech, Politics

“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. Things change, nothing stays as is. I consider myself fairly conservative, but I do believe the only thing constant is change. Now a city councilor in DC wants to bring in the national guard because the violent crime situation has gotten so far out of control the cops evidently can’t handle it. Somewhere down the road these dims in DC will realize that they are going to have to let the cops do their job. The national guard are not as skilled as the police at enforcing the law. Winston Churchill use to say you can always depend on the Americans to do what is right, after they’ve tried everything else.

    1. Independent Bob,
      It is not just DC.
      The Oakland NAACP chapter is calling for a state emergency due to the rise of violent crime.
      Other Democrat ran cities like Portland, Seattle, Baltimore, St. Louis, Chicago, NYC are all seeing rising crime rates. Most communities affected are minorities like East Oakland.
      If progressive Democrats have their way, the whole of America will look like these cities.

    2. I wonder if they could ask the Coast Guard for assistance. The CG has probably more law enforcement experience than any National Guard unit. Since the CG falls under Homeland Security, posse comitatus should apply,

  2. You, and others like you, whine about this without end. This is a forum paid-for and maintained by Prof. Turley. Commenting here is a privilege; not a right. Go start your own blog if you want all your opinions published. Same thing goes for bookstores who are disinclined to carry “conservative” books. The store is paid for and maintained by some owner. I would object to them being forced to carry books they object to. Besides, they are already paying a fine on said books by forgoing the sales of those books.

  3. “The police watched as (BLM) protesters wrote slogans and slurs on stores, streets, and sidewalks with paint and chalk.”

    Second paragraph. Nothing left out.

    1. Side walks and streets are public property. The professor made sure to mention that the sidewalk the pro-life protesters was public, but left out that sidewalks and streets at the BLM protests are also public.

      Both protesters used public property to write their opinions.

  4. There’s leaving a distinguished storied ‘legacy’ and then there is delirium tremens of ‘adding to the legend’….this knucklehead Boasberg has eschewed any semblance of juridical thought and is floating hopelessly in a limbo of making it up as he goes along….the shmuckery is palpable.

  5. Censorship arises in places we would not expect. Or perhaps we do expect it. Independent bookstores find that refusing to sell books from the likes of conservator leaders is a great way to keep those opinions they find offensive–usually having to do with pro-life, anti-child mutilation, and small government–from being seen. But I’m certain they would order a copy of Mao’s “Little Red Book.”

  6. ” . . . none of the [BLM] protesters were arrested. During the same summer, District police officers arrested two pro-life advocates . . .”

    In a fascist nutshell: If you agree with the politicians/bureaucrats in control, you’re free to go. If you dissent, you’re a criminal.

    Free speech — on life support. Suffering from an attempt to murder by a thousand cuts.

  7. ATT

    Boo hoo Smeagol

    If Hunter is ever threatened with real jail time and offered immunity, do you think he would flip on Joe, his extortionist father who showered with his sister and made Hunter “give him half his salary”?

    1. Eye witness statements are not evidence??? Hand over eyes again Smeagol, good boy.

      1. Seems you’re amazed that someone else has a little to do as you, and is able to keep up with your post count.

        Boo hoo Smeagol, maybe try crying to Darren again…

        LMAO

    2. Or is it that you wouldnt consider Hunter’s testimony as evidence either? Sounds about right Smeagol

      1. Or are you saying that i am insane to think that Hunter would flip on Joe???
        I guess we would find out which Biden really is the bigger scumbag.
        LMAO Smeagol.

        1. There’s that complete lack of self awareness we love so much.

          Oh wait, or were u talking to yourself again, Smeagol?

  9. does anyone besides me see an application here for Trump to argue a similar defense in his case before the district court in DC? Obviously, the authorities ignored Hillary’s crimes and many other offenses or potential offenses but have selectively focused enormous resources to get Trump on charges that they otherwise ignored like those of Maxine Waters and Chuck Schumer who actually did advocate violence against elected and appointed government officials.

    1. Not really. Defacing public property is a crime. Under your legal theory (lack of prosecution in one case can
      be used to defend and exonerate the same misconduct from yourself), the law becomes flaccid and its enforcement too easy to thwart. I agree that uneven enforcement is unfair. But, societal order would rapidly decline if your theory were legally accepted, and most will accept some unfair non-prosecution decisions as a cost of an orderly, peaceful society.

      1. I was not comparing the crimes or alleged crimes but the application of prosecutorial resources selectively invoked here because the prosecutor dislikes the accused. That dislike that is the gravaman of the charge of selective and abusive prosecution is easily shown by describing the four democrat-brought charges against Trump. The political implications here are overwhelming to the same degree as the contrast between the pro-lifers and the BLM terrorists.

    2. Selective prosecution is a difficult defence to win. I doubt Trump would succeed.

      The root of the problem here is the Democrat/Progressive dominance of control over our urban centres. This in turn is the result of urban blacks and, to a somewhat lesser extent Hispanics, voting overwhelmingly for Democrats. This despite these groups being the principal victims of Democrat policies on crime and schools.

      Until Republicans are able to persuade more blacks and Hispanics that Democrat policies are hurting them and that the Republican alternative is better, the problem cannot even begin to be solved. A tougher approach to crime and more school choice, if presented clearly and directly and repeatedly to urban black and Hispanic audiences, should help. Is any Republican doing this?

      1. NOPE. And they won’t. They won’t fight for us, they won’t fight for America but they WILL fight Trump and his supporters. Tells you ALL you need to know about the Republicans and why they will lose.

      2. Daniel,
        Based off polling we are seeing Hispanics and Blacks leaving the Democrat party.
        Another soft on crime Democrat DA is facing recall efforts in of all places CA.
        The Save Alameda for Everyone organization have officially file a notice of intent to recall Alameda County District Attorney Pamela Price.
        The Oakland NAACP is calling for a state of emergency for the Oakland area due to rising crime.
        In 2020 when crime was rising, residences of Oakland held a pro-police rally demanding safer streets and communities. The residents were black.
        A bunch of antifa protesters showed up. They were white.
        Reports of heated discussion between the two groups.
        If it were not for the police presence, the antifa guys would of likely gotten their butts handed to them.

        1. I’ve seen some of the polling and noted the emergence of some opposition, but that does not mean voting support will fall away to any meaningful degree. Black Republicans like Winsom Sears in Virginia could do a lot to lead a national effort to pull away black support from the Democrats, but I see nothing of this kind. Tim Scott could also do more. If Democrats lost even a relatively small proportion of black votes they could be shut out of power for a long time.

        1. Really???
          And what is the adjective form of Republican?
          There is nothing democratic about todays Democrats, Smeagol

        2. I know the grammar, and that the party is officially called the Democratic Party. I now use Democrat as an adjective to express disdain. And I am speaking as someone who not so long ago used to vote for them consistently.

        3. “The adjective form of Democrat is Democratic.”

          That is why it is pointless attempting to use the “adjective form”. It would be a crock of sh/te.

    3. Emotionally I want to support such an idea but I believe lack of exact equality alone will not prevail without overwhelming evidence since they have the right to be unequal where safety and other concerns arise.

      “because the prosecutor dislikes the accused. “

      If that is the case, wouldn’t you have to prove collusion, discrimination, or another act?

      The American experiment is fragile, and the left has found a way to use its own rules to destroy this experiment.

  10. If you want to discuss disparate treatment just think back to early 2020 when EVERYONE was telling us we had to stay home, not to visit older parents and grandparents, even if they were dying, skip funerals, stop working, stay out of school, stop going to church, etc etc, while at the same time we had to watch nurses (who I think do God’s work) and doctors cheering on protesters and rioters. It was appalling.

    They told us that if we left the house we would be jeopardizing medical professional’s lives and then we see medical professionals saying that racism was as much of a danger to society as Covid????

    Now as for the case at hand I have to ask how is it that the judge in the original case can rule in such an unconstitutional manner without repercussion? In today’s left leading legal world why isn’t this a conspiracy to commit an illegal act? Why no investigation into what the judge was thinking? Why no look to see what groups he belongs to, who he discussed this issue with, what ties to the Dem party he may have?

    Of course my questions are tongue in cheek and rhetorical as I understand how the judiciary works, but it should be concerning that if we keep going the way we are going conservative judges may be in for a rude awaking.

    1. HullBobby,
      We have law and order on one side and selective prosecution on the other.
      Welcome to the banana republic of Doublestandarism.

    2. @Hullbobby

      Tongue in cheek or no, your statements are accurate. Trust me: a whole lot of us will NEVER forget what was done to us in 2020. The lockdown was one of the most egregious crimes against humanity in modern history, IMO. It was absurd, totalitarian drivel inside and out. No other words for it.

  11. No shock Judge Boasberg seemed to take a side here. He’s the guy who refused to give jail time to the FBI attorney who doctored an email that deceived the FISA court and got them the approval to spy on Carter Page – starting the Russiagate lie rolling downhill. That guy should have been jailed, and should STILL be there.

    Boasberg doesn’t seem too concerned about civil rights and truth/fairness. He seems to be just another swamp creature.

    1. If we keep electing Democrats like Joe Biden to the WH and senators like the Democrats in GA, PA, AZ and NV, we will have judges like Boasberg sitting as Justices on the Supreme Court…and then it is all over.

      1. You are so correct. This is what I tell people about President Trump. You don’t have to like him, but what you are voting for is keeping the courts and SCOTUS from being taking completely over by the progressives.

        1. ATT

          Smeagol,
          If Hunter is ever threatened with real jail time and offered immunity, do you think he would flip on Joe, his extortionist father who showered with his sister and made Hunter “give him half his salary”?

          1. Sadly so. It’s all about choose the best garbage can in the alley. They are all garbage. You seem to be willing to choose a scumbag demented candidate just because he is a Dem. We know no matter who runs as the GOP candidate, YOU would never consider him or her.

          1. I agree with both of you, Upstate. Trump and I face the same threat. The rest is less existential.

        4. You are correct.
          Voting for the Biden Crime Family is voting for corruption, grift for their family brand and someone who is clearly attempting to circumvent all the norms they promised to bring back.

          1. “Voting for the Biden Crime Family is voting for corruption…” Upstate, one has to wonder why, after so much time has past since Johnson’s “Great Society” made even more lives miserable, the relatively few who’ve escaped the Democrat plantation are unable to persuade their brethren to join the fight against their Masters for real Freedom and self-determination.

            1. JAFO,
              I would have to guess black Democrat leaders convince their constitutes that they are really looking out for their best interests to keep them on the Democrat plantation.
              That is why they resort to calling any black Republicans things like “Uncle Tom.”
              I do not recall the name of the most recent black Democrat who left the party for the Republican party, but she said something to the effect of what the Democrat party fears is a independent thinking black woman.
              IIRC, she also got death threats and called some ugly racist names.

              1. Agree to a point, Upstate. Minority Leadership collects a substantial portion of that grift, too. Their flocks never question it, never put two and two together. 🙄

        5. “And you’d be voting for a b hole idiot authoritarian wannabe who’d throw you under the bus first thing once getting your vote.”

          Ok, Trump had four years to build gulags. Who are his political prisoners, exactly? He released a lot of people from prison, as I recall. Doubt any voted for him.

          I hear our prisons are full of political prisoners, now. Doubt any voted for Joe.

          I don’t set foot in DC because I don’t want to wind up a plasticized cadaver in the Smithsonian.

          1. The wanna be authoritarian Biden Crime Family is not good at the task as it has been easy to find 170SARs, the 20+ shell companies, the texts, the emails, are not good at running a business or being president.

          3. Your wit is amazing, Smeagol. Wow, i could hardly stop laughing.

            Hands back over your eyes now. Good boy

          4. “he did preside over creating prisons for kids on the southern border”

            Perfect example of why i am going to troll the sh!t out of you pedophiles until you leave. Obama built those cages and you know it, and biden continues to use them.

            Hands back over your lying eyes now Smeagol. Good boy

      2. ATT

        Brilliant response, Smeagol.

        If Hunter is ever threatened with real jail time and offered immunity, do you think he would flip on Joe, his extortionist father who showered with his sister and made Hunter “give him half his salary”?

        1. Lol yep, its all about hunter.

          Good one, Smeagol.

          Hands back over your eyes now, good boy

  12. How Strange that a district court judge appointed by Barack Obama finds that citizens have no right to contest selective enforcement of the law , thereby giving the government a monopoly on expression. Thankfully the Circuit Court of Appeals disagreed. And media and democrats wonder where the force behind Donald Trump came from. The people have realized that this has been going on for some time and have become enraged at it’s occurrence and the minions of Barack Obama all through the government are attempting to destroy this country with actions such as these. Only the government has the right to a worthwhile opinion. A dangerous thought to a democracy or federal republic.
    Abraham Lincoln would turn over in his grave. Hopefully “the government of the people, by the people, and for the people will not perish from this earth”. I think Judge Boasberg forgot that the he is a judge for those same people and empowered by the constitution to make decisions in their stead and in agreement with the constitution. He does not know what is best for the people. The constitution is the what the people have chosen to define the government and what is best for them. He needs some refresher classes in Law nd needs to look again at our history and actions of the judges and attorneys in WW2 Germany and the special edition of the Nuremberg Trials for judges specifically

  13. We shall see if the MSM media covers this one. As to judges, the electorate needs to be more circumspect with regard to who sits on the bench at their pleasure in their local jurisdictions. In those jurisdictions where the electorate is allowed to choose, giving judges a rubber stamped guarantee for ‘re-election tenure’ has to end. They should be obliged to earn the vote by effort and example, NOT by entitlement.

  14. @Turley,
    You need to dig deeper into Boasberg’s past.
    He was on the FISC.
    Per Wikipedia:
    Appointment to United States Foreign Intelligence Surveillance Court

    On February 7, 2014, Chief Justice John G. Roberts announced that he would appoint Boasberg to the United States Foreign Intelligence Surveillance Court for a term starting May 18, 2014 to a seat being vacated by Reggie Walton.[15][16] His term began May 18, 2014.[10] On December 20, 2019, the FISC announced he will replace the presiding judge FISC January 1, 2020[17] and elevated to preside. His term as presiding judge and judge of the FISC ended on May 19, 2021.

    -=-
    Seems he’s a radical Obama judge who wants to abuse his position on the bench.

    While you focus on the ruling… you should highlight the judge who made such a disgraceful ruling.
    Almost hypocritical and there’s a bit of irony. He could have easily used the phrase equitable justice in his ruling.

    -G

    1. Great information Ian! Can anyone imagine a liberal Chief Justice giving a conservative judge the power that Roberts gave to Boasberg?

    2. We should just get rid of the FISC.

      There is no need for a Warrant unless US persons are being spied on.
      And if they are then the NORMAL processes and standards for a warrant must be followed.

  15. On a related topic, was there ever any accountability for the illegal arrest of a street preacher at a gay pride protest in PA? If you recall he was arrested because the cop was offended at the content of his speech (that he recited a Bible verse). The DA saw that and immediately dropped charges. But it would be nice to know if the cop ever faced consequences for his unconstitutional conduct.

    https://www.christianpost.com/news/charges-dropped-against-street-preacher-arrested-at-pride-protest.html

  16. It’s frightening that the very people we depend on to uphold laws and the Constitution — are ignorant of the law. How is it that a Boasberg even gets to be a district court judge in the first place? And we’re seeing the same ignorance — or outright ignoring — of the law in the Georgia case against Trump. What a disgrace that DA is.

  17. The D.C. government spent considerable taxpayer resources defending Judge Boasberg’s decision because they are true Kool-Aid drinkers. They believe that conservative speech should not only be banned, but conservative protesters should be arrested. Sadly, while an excellent free speech decision by the D.C. Court of Appeals, the D.C. government has no intentions to stop this one-sided policy.

  19. I wish there was a “LOVE” button, I would click that.

    When reading comments here and elsewhere, notice who makes this about abortion instead of free speech.

    1. I wish there was a “LOVE” button, I would click that.

      I know where its at! You can find it too. All you have to do is take the time to look for it. (but the looking for it, it what makes it so much fun

  20. Amen, and what of the comparison of the multiple 2020 riots with murders and property destruction versus the J6 convictions

    1. How the J6 defendants have been treated sets a new level of acceptable treatment.
      Lets start throwing ANTIFA protesters who riot and attack federal buildings the same way.

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