Appeals Court Says DC ‘Selectively’ Enforced Statute To Arrest Pro-Life Activists But Not BLM Protesters

A federal appeals court ruled 3-0 Tuesday that the Washington D.C. “selectively” used a defacement statute to arrest pro-life activists for chalking a message on the sidewalk while permitting Black Lives Matter (BLM) protestors to mark property without consequences.

During the summer of 2020, at the same time thousands of BLM protestors were taking to the streets of Washington, D.C. and covering public spaces with paint and chalk, two pro-life activists were arrested for chalking the words “Black Pre-Born Lives Matter” on a public sidewalk. The Frederick Douglass Foundation and Students for Life of America, who organized the pro-life protest and filed the lawsuit over the arrests, “plausibly alleged” that the statute’s enforcement was viewpoint discrimination, the U.S. Court of Appeals for the District of Columbia found.

“The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive,” Circuit Judge Neomi Rao, a Trump appointee, wrote in the opinion for the court. “We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance.”

“The District all but abandoned enforcement of the defacement ordinance during the Black Lives Matter protests, creating a de facto categorical exemption for individuals who marked ‘Black Lives Matter’ messages on public and private property,” the ruling states.

Pro-life activists had a permit to assemble and verbal permission from a police officer to point their message, according to the ruling.