Viewpoint Discrimination: The District allowed “Black Lives Matter” protestors to violate the city’s defacement ordiance, but enforced the law against groups with a different political message

Jonathan Adler:

Today the U.S. Court of Appeals for the D.C. Circuit revived a lawsuit agaisnt the District of Columbia for selective enforcement of the district’s defacement ordinance in violation of the First Amendment. Judge Rao wrote for the court in Frederick Douglass Foundation v. District of Columbia, joined by Judge Childs, reversing the district court’s dismissal of the Foundation’s First Amendment claim, but affirming dismissal of an Equal Protection claim. Judge Wilkins concurred in the judgment.

Judge Rao’s opinion for the court summarizes the case and decision as follows:

The First Amendment prohibits government discrimination on the basis of viewpoint. “To permit one side … to have a monopoly in expressing its views … is the antithesis of constitutional guarantees.” City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm’n, 429 U.S. 167, 175–76 (1976). The protection for freedom of speech applies not only to legislation, but also to enforcement of the laws. This case concerns a constitutional challenge to the selective enforcement of the District of Columbia’s defacement ordinance against some viewpoints but not others.

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.