Appeals court sides with pro-lifers arrested for sidewalk chalk

A federal appeals court issued a free speech ruling in a case concerning the prosecution of pro-life activists arrested in August 2020 for using non-permanent chalk to write “Black Preborn Lives Matter” on a sidewalk outside a Planned Parenthood abortion clinic in Washington, D.C., while allowing BLM rioters to deface buildings with spray paint. 

Alliance Defending Freedom, a legal nonprofit specializing in religious freedom cases, represented members of the Frederick Douglass Foundation and Students for Life of America, contending that authorities unfairly treated the pro-lifers. 

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit ruled in a 3-0 decision that authorities “selectively enforced” defacement ordinances due to disagreement with the viewpoints of the two groups. The appeals court determined that this selective enforcement violated the First and Fifth Amendments, reversing a lower court’s decision to dismiss a lawsuit brought by SFLA and the Frederick Douglas Foundation.

According to the ruling, the District engaged in viewpoint discrimination by enforcing a defacement ordinance against the pro-life advocates who wrote “Black Pre-Born Lives Matter” on the sidewalk in 2020 but not against protestors and rioters who chalked “Black Lives Matter” and spray painted anti-police messages on streets, sidewalks and buildings in the nation’s capital. 

The court’s ruling highlighted how, throughout the summer of 2020, protestors covered sidewalks and storefronts with paint and chalk in response to the death of George Floyd in Minneapolis, Minnesota, in May 2020.

The opinion noted that the markings were in “open violation” of the defacement ordinance, but none of the protestors were arrested. Some rioters also used yellow paint to write “Defund the Police” messages on a mural that Mayor Muriel Bowser commissioned in June 2020. 

“The government may not enforce the laws in a manner that picks winners and losers in public debates,” the court wrote in its opinion. “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.”

ADF Senior Counsel Erin Hawley, vice president of the ADF Center for Life and Regulatory Practice, championed the right of every American to make their voices heard on cultural and political issues. 

“Washington officials can’t censor messages they disagree with. The right to free speech is for everyone, and we’re pleased the D.C. Circuit agreed that the Frederick Douglass Foundation and Students for Life should be able to exercise their constitutionally protected freedom to peacefully share their views the same as anyone else,” Hawley stated. 

J.R. Gurley, president of the Frederick Douglas Foundation’s Virginia chapter, also expressed satisfaction with the decision, asserting that the city cannot selectively determine which groups are allowed to participate in a public forum. 

“The First Amendment protects our right to peacefully share our pro-life message in Washington, D.C., without fear of unjust government punishment and thankfully, the D.C. Circuit agreed,” Gurley added.

SFLA President Kristan Hawkins called the court’s decision which favored pro-life students “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 in a statement shared with The Christian Post. “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.”

As The Christian Post previously reported, SFLA and the Frederick Douglas Foundation filed a lawsuit against Washington, D.C., in 2020 after two pro-life advocates were arrested in front of a local Planned Parenthood clinic for writing in chalk on the sidewalk outside of the facility. 

SFLA argued that it had obtained a permit to write messages in temporary paint after the city mayor painted a public street. According to a now-deleted SFLA petition, six police cars were outside the D.C. Planned Parenthood when pro-life advocates arrived. 

The police threatened members of SFLA’s team with arrest if they painted “BLACK PREBORN LIVES MATTER” with the temporary paint that police had requested they use, according to the pro-life group. 

“When we asked if we could at least use sidewalk chalk to chalk our anti-violence message on the streets, the police threatened to arrest us,” SFLA stated.

Police arrested a man and woman on Aug. 1, 2020, for chalking on the sidewalk outside the abortion facility, eventually releasing the pair and issuing citations to them both.

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