Appeals Court Says DC Cops Possibly Violated The First Amendment By Arresting Pro-Life Sidewalk Chalkers
from the gotta-arrest-someone-I-guess dept
I guess the feeling was that some protesters needed to be arrested. And when most protesters are protesting cops, it’s probably a whole lot easier to go after those that aren’t.
That’s how this lawsuit got started. Following the murder of George Floyd by Minneapolis police officer Derek Chauvin, protests against police violence began all over the nation. In Washington D.C. — which has statutes against “defacing” public property — this took the form of “chalking,” i.e. writing out protest messages in chalk on public sidewalks.
Whether or not the law is right (or even essential), the law exists. Sidewalk chalking by anti-police violence protesters often contained the phrase “Black Lives Matter.” Pro-life protesters decided to do some protests of their own (but against what exactly in this context?) by writing the phrase “Black Pre-Born Lives Matter” on DC sidewalks. While it’s nice to see anti-abortion protesters at least tentatively agreeing that some black lives matter (at least up until they’re born), this was basically an opportunistic hijacking of a message to cops by people who generally don’t have a problem with cops.
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.
The organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America (collectively “the Foundation”), sued. The Foundation alleged violations of the First and Fifth Amendments, conceding the defacement ordinance was facially constitutional, but arguing the District’s one-sided enforcement of the ordinance was not.
The lower court said these protesters were wrong. It said both allegations (under the First Amendment and Equal Protection Clause) were roughly the same and this unequal enforcement violated neither of the two ideals it decided should be considered a single claim.
The appeals court says they’re not the same. While it may be true the officers’ actions in these enforcement efforts may not have violated the Equal Protection Clause (given the lack of evidence demonstrating a discriminatory stance by the DC PD), it’s far more likely this violated the First Amendment rights of the abortion protesters.
The District seemed to decide it was better to let (certain) people speak, rather than create any additional reasons for residents to be unhappy with law enforcement.
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 complaint offers a number of examples. The day after Mayor Bowser’s street mural was revealed, protestors added an equal sign and “Defund the Police,” so the message read “Black Lives Matter = Defund the Police.”
Police officers watched as the alteration took place and did nothing to stop it. Although the Black Lives Matter advocates did not seek a permit or otherwise receive consent, they were neither arrested nor charged under the defacement ordinance. In fact, the District left the addition in place for months, eventually removing it in mid-August.
Selective enforcement is never a good idea. And it’s an especially bad idea when it’s immediately clear to those being arrested the enforcement of a statute is highly selective.
In a conversation about the permit, a police officer gave the Foundation verbal permission to paint its “Black Pre-Born Lives Matter” message on the street. The officer explained that he believed Mayor Bowser had effectively opened up the District’s streets for political markings. The Foundation also sent a letter to Mayor Bowser asking to paint a mural and declaring it a constitutional right to do so. Mayor Bowser did not respond.
When the pro-life advocates arrived for their rally on August 1, six police cars and many police officers were waiting. The officers said the advocates could assemble in accordance with the Foundation’s permit, but if they painted or chalked their message on the sidewalk, they would be arrested for violating the defacement ordinance. Two students began to chalk “Black Pre-Born Lives Matter” on the sidewalk anyway. Despite the message being written in small, faint letters with washable chalk, the two students were arrested. The entire event was caught on video.
This was not the only incident. The Foundation planned to hold another rally on March 27, 2021, to proclaim “Black Pre-Born Lives Matter” and write their message on the public street. The Foundation sought a permit and was allowed by the District to assemble with a bullhorn and a music stand. The District again denied the Foundation’s request to paint or mark on the street or sidewalk.
And that’s a First Amendment violation, says the DC Appeals Court. Selective enforcement is just a pretty term for viewpoint discrimination, which the government definitely isn’t allowed to engage in.
The government may not enforce the laws in a manner that picks winners and losers in public debates. It would undermine the First Amendment’s protections for free speech if the government could enact a content-neutral law and then discriminate against disfavored viewpoints under the cover of prosecutorial discretion. […] Neutral regulations may reasonably limit the time, place, and manner of speech, but such regulations cannot be enforced based on the content or viewpoint of speech.
That’s how the First Amendment works, and always has, especially in cases like these where the subject matter given selective enforcement is political speech. When the DC government took a hands-off approach to certain protests but showed up in force to police others, it got into the business of picking winners. That’s just not allowed.
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.
The case returns to the lower level to address the plaintiffs’ First Amendment claims. The District will now have to present better arguments than “well, one protest was bigger than the other protest” (yeah, that’s the actual argument) to avoid losing this lawsuit.
And that has always been the case. The First Amendment isn’t that difficult to understand. If cops understood the mayor as “opening the streets” to defacement of public property, that “opening up” applied to everyone, not just those the mayor may have sympathized with.