Appeals court sides with anti-abortion protesters in D.C. First Amendment dispute

Screen Shot 2020 08 03 at 32100 PM Metropolitan Police arrest a Students for Life volunteer, Aug. 1, 2020. | Students for Life

A federal appeals court this week sided with a group of pro-life protesters who claim the city of Washington, D.C., discriminated against them by arresting them for anti-abortion messages they had written with chalk in 2020.

The U.S. Court of Appeals for the District of Columbia said in its ruling Tuesday that the Frederick Douglass Foundation (FDF) and Students for Life of America (SFLA) had “plausibly” demonstrated that Washington police had violated the First Amendment rights of two protesters when they were arrested over a pro-life slogan they wrote in chalk on a city sidewalk that year.

The protesters had written “Black Preborn Lives Matter” on the sidewalk at a rally that occurred outside the Planned Parenthood Carol Whitehill Moses Center in Washington, D.C.

The pro-life rally occurred amid the larger Black Lives Matter protests that had swamped Washington that summer, as D.C. and many other U.S. cities saw protests, demonstrations, and sometimes riots following the police-involved killing of Minneapolis resident George Floyd in May 2020.

The appeals court noted that when the pro-life protesters showed up for the rally outside the abortion business on Aug. 1, they were told they could assemble but “if they painted or chalked their message on the sidewalk, they would be arrested for violating the defacement ordinance.”

The defendants were arrested after writing “a single, small pro-life message in washable chalk,” the court said. In contrast, “individuals participating in the Black Lives Matter protests painted their messages on public streets and sidewalks, as well as private property” with apparently no legal consequences, the court pointed out.

The government “may not play favorites in a public forum — permitting some messages and prohibiting others,” the ruling said.

The pro-life protesters, the judges said, have compellingly demonstrated that “the District’s selective enforcement of the defacement ordinance constituted viewpoint discrimination in a public forum in violation of the First Amendment.”

A chalked Students for Life of America protest on a Baltimore street in 2020. Students for Life of America
A chalked Students for Life of America protest on a Baltimore street in 2020. Students for Life of America

The appeals court ruling reverses an earlier dismissal by the lower D.C. district court, allowing the suit to continue.

Though they affirmed the plausibility of the First Amendment complaint, the judges in the ruling upheld the lower court’s dismissal of an equal protection claim originally filed by the plaintiffs.

In a statement on the group’s website, SFLA president Kristan Hawkins said the decision was “very encouraging.”

“Viewpoint discrimination is un-American, and, as the case proceeds, we look forward to learning more about how D.C. officials picked winners and losers in their enforcement,” Hawkins said. “Free speech rights you’re afraid to use don’t really exist, and we will keep fighting for the rights of our students to stand up for the preborn and their mothers, and against the predatory abortion industry led by Planned Parenthood.” 

The Frederick Douglass Foundation, meanwhile, said on Facebook that the ruling was “a great win in D.C. courts for us.”

The plaintiffs had originally brought suit in November 2020. The suit argued that D.C.’s vandalism laws “may not be used as a tool to silence disfavored speech.”

The District of Columbia “is prohibited from favoring one message over another,” the suit stated. “It is axiomatic that the government cannot choose which messages succeed and which are censored in our diverse society.”

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