DC Selectively Punished Pro-Life Chalk Art, but Left BLM Unbothered: Civil Rights Lawyer

In this screenshot from the DNCC’s livestream of the 2020 Democratic National Convention, Washington D.C. Mayor Muriel Bowser addresses the virtual convention on Aug. 17, 2020. DNCC via Getty Images

This week, a U.S. federal appeals court ruled that pro-life activists had convincingly argued that authorities in Washington violated their first amendment rights by selectively enforcing a law to punish pro-life writing in public while ignoring far more examples of similar behavior by Black Lives Matter (BLM) activists. Now, civil rights attorney Erin Hawley is preparing to take the D.C. government back to court in a revived federal lawsuit.

“This case is really incredible,” Ms. Hawley said in a recent interview with NTD’s “Capitol Report.”

The case stems from an incident in which a pair of pro-life activists were arrested and charged with violating a local ordnance against property defacement after they wrote the message “Black Pre-Born Lives Matter” in relatively small and faint lettering on a Washington sidewalk with washable chalk. Around the same time these two pro-life activists were arrested, numerous BLM activists were spreading their own messages across the city streets without facing any similar arrests.

The Frederick Douglass Foundation and Students for Life brought a lawsuit alleging the city applied selective enforcement to go after the pro-life activists while leaving preferred political messages largely untouched. Ms. Hawley, senior counsel and vice president of the Center for Life and regulatory practice at Alliance Defending Freedom, represented the pro-life groups in their lawsuit.

“When you look at the facts it arises from the summer of 2020, when, following the tragic death of George Floyd, Black Lives Matter protests spread across the nation,” Ms. Hawley explained. “Washington D.C. was a particular sort of a hotbed of political activity, and protesters spray-painted in permanent paint—sometimes, in paint spanning an entire city block—different messages such as ‘Defund The Police’ or ‘Black Lives Matter.’ But our clients wanted to hold a peaceful protest and chalk a similar message, ‘Black Pre-Born Lives Matter.’”

While her clients were arrested, Ms. Hawley noted no BLM activists were arrested for similar actions throughout the summer of 2020, even though there were far more common and permanent examples of BLM activists tagging their messages throughout the city.

The pro-life plaintiffs initially brought their case before the D.C. District Court, but District Judge James Boasberg—an appointee of President Barack Obama—dismissed the initial lawsuit in September of 2021. Ms. Hawley represented the plaintiffs in an appeal at the D.C. Circuit Court of Appeals and successfully argued to revive the legal complaint.

City Made No Real Justification for Unequal Enforcement, Says Attorney

When asked about the city’s justification for the disparate enforcement outcomes, Ms. Hawley said the city “didn’t really” have any.

“What they said instead was [that] there’s just a really high standard, and you’re not allowed to bring a selective enforcement claim under the First Amendment,” Ms. Hawley said.

NTD News reached out to lawyers who represented the D.C. government in the case, but did not receive a response by the time this article was published. In their initial motion to dismiss the case, the defendants argued (pdf) that the plaintiffs “cannot show that they have a right to deface public property or that the District’s application of the Defacement Ordinance violates plaintiffs’ constitutional or statutory rights.”

The appeals court rejected that argument from the defense.

“The D.C. Circuit was really firm in saying ‘absolutely not, there can be selective enforcement with respect to viewpoint,’ and in particular, they said that the government can’t pick political winners and losers based on their speech,” Ms. Hawley said. “The city is perfectly entitled to say no one can write on city streets, even in chalk, but what they can’t do is allow certain viewpoints to be expressed in chalk or in permanent paint and disallow other disfavored views from being expressed in the same manner.”

D.C. Mayor Muriel Bowser had shown her support for BLM activists and ordered city workers to paint the message “Black Lives Matter” in large yellow letters down the length of a city street. The message was later modified by BLM activists, who added “Defund the Police” in yellow paint on the same street, connecting it to the “Black Lives Matter” street mural with an equals sign. That message was left on the D.C. city streets for months and, according to this week’s appeals court ruling (pdf), D.C. police officers watched the alteration take place without taking any action to stop it.

Legal Challenges Ahead

While the appeals court overturned Judge Boasberg’s ruling in the lower court, the case has been remanded and will now have to go back before the lower court. While the appeals court decision marks a temporary victory for the pro-life plaintiffs, they'll haven’t won outright.

“One thing you have to show in a case like this, is that the district has a pattern or practice of disparately enforcing its law,” Ms. Hawley said.

With the case being remanded, she said one of the next steps will be to pursue discovery, gathering more information from D.C. authorities about how they enforced local laws and ordinances.

“We'll have the opportunity to go back down to the district court, and to receive discovery from the city from the District of Columbia and find out exactly how six police cars managed to show up and arrest two students when no one else was being arrested throughout the city.”

From NTD News