An appeals court says Washington, D.C, selectively enforced defacement laws against anti-abortion protesters while declining to enforce them against racial justice protesters.
The court's finding was released on Tuesday in a 42-page ruling.
"In the summer of 2020, thousands of protesters flooded the streets of the district to proclaim 'Black Lives Matter,' " the 42-page ruling said. "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.
"We affirm the district court's dismissal of the foundation's equal protection claim because the foundation has not plausibly alleged invidious discrimination by district officials. Discriminatory motive, however, is not an element of a First Amendment free speech selective enforcement claim.
"The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government's motive. We hold the foundation has plausibly alleged the district discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. We therefore reverse the dismissal of the foundation's First Amendment claim and remand for further proceedings."
The court found that it disagreed with the district court's ruling that the foundation "failed to allege a policy of selective enforcement …" The foundation has more than plausibly alleged a 'persistent and widespread' district practice of selective non-enforcement against those who marked and painted 'Black Lives Matter' messages."
Jeffrey Rodack ✉
Jeffrey Rodack, who has nearly a half century in news as a senior editor and city editor for national and local publications, has covered politics for Newsmax for nearly seven years.
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