During the summer of 2020 in Washington, DC, while protests against police brutality and the unfortunate death of George Floyd by former police officer Derek Chauvin were ongoing, a modest weekly demonstration occurred in front of a nearby Planned Parenthood Women’s Health Clinic.
While the majority of the district’s areas saw protesters utilizing paint and chalk to create signs on streets, buildings, and private property, the DC metro police chose not to actively enforce the city’s defacement ordinance. Interestingly, a different approach was taken when a pro-life student group employed colored chalk to inscribe a basic message on the public walkway outside the clinic. Notably, on August 15, a Federal Appeals Court decision favored the continuation of a lawsuit initiated by these pro-life students, overturning the prior dismissal by a lower court.
On August 1st, 2020, two pro-life demonstrators were apprehended by DC Metro officers for chalking messages reading “Black Pre-Born Lives Matter,” despite having been cautioned against defacing public property. Subsequently, the Alliance Defending Freedom (ADF) initiated legal action on behalf of Students for Life of America and the Frederick Douglass Foundation, jointly referred to as “The Foundation.” This lawsuit was filed against the District of Columbia in the US District Court for the District of Columbia in November 2020.
Within the lawsuit, the plaintiffs presented five distinct claims against the District of Columbia, including:
- Violation of First Amendment Free Speech Rights
- Violation of the Due Process Clause of the Fifth Amendment, specifically regarding selective enforcement of the law
- Violation of First Amendment Free Association Rights
- Violation of the Religious Freedom Restoration Act
- Violation of First Amendment Free Exercise of Religion Rights
The case was dismissed by the District Court on September 1, 2021, in a manner that allowed for future reconsideration, and by September 30, 2021, The Foundation lodged an appeal with the DC Appellate Court. A panel of three judges, comprising Neomi Rao, a nominee of President Trump, Robert Wilkins, chosen by President Obama, and Michelle Childs, selected by President Biden, thoroughly reviewed the case. Their unanimous judgment was rendered on August 15th.
The Appeals Court determined that the plaintiff’s second assertion held credibility. In particular, the Alliance Defending Freedom (ADF), representing The Foundation, contended that during the summer of 2020, authorities in DC exhibited a bias in how they employed and upheld defacement regulations. This differential treatment raised concerns about potential infringements on the First Amendment’s right to Freedom of Speech, as well as the Fifth Amendment’s guarantees of Due Process and Equal Protection.
In the verdict issued on August 15, Rao articulated that the shield of freedom of speech encompasses the manner in which jurisdictions execute laws and the laws themselves. She further highlighted that the intentions of the government are irrelevant; they are obligated to uphold the First Amendment’s mandates against viewpoint-based discrimination.
Additionally, Rao elucidated that the panel of judges, in complete agreement, found the plaintiffs’ assertions reasonably credible. They contended that the District demonstrated bias through its discriminatory application of the defacement ordinance. As a result, the panel reversed the prior dismissal by the lower court and sent the case back to the District Court for deliberation on the charge of selective enforcement.
