DC Circuit revives suit claiming city selectively prosecuted anti-abortion chalkers

WASHINGTON — A federal appeals court on Tuesday revived a lawsuit claiming D.C. discriminated against anti-abortion protesters in the summer of 2020, saying in an opinion the groups had “plausibly” argued they were targeted under an anti-graffiti ordinance when Black Lives Matter protesters were not.

In a unanimous 3-0 opinion, a D.C. Circuit Court of Appeals panel ruled a lower court judge erred when he dismissed the suit in late 2021. Circuit Court Judge Neomi Rao, a 2019 nominee of former President Donald Trump who authored the opinion, said the two anti-abortion groups that brought the suit had plausibly alleged the District had violated their First Amendment rights by enforcing a defacement ordinance on the basis of “the content and viewpoint of their speech.”

The lawsuit was filed by the conservative religious legal advocacy group Alliance Defending Freedom on behalf of the anti-abortion groups Students for Life of America and the Frederick Douglass Foundation – collectively called “the Foundation” in the suit. The groups alleged two anti-abortion protestors had been arrested for writing “Black Pre-Born Lives Matter” on a public sidewalk when protesters who had written “Black Lives Matter” on surfaces across the city had not. The Circuit panel found that wasn’t enough to sustain a lawsuit under the Sixth Amendment’s equal protection clause, but was enough, at least at the early dismissal stage, to keep it going under a First Amendment argument.

“The government may not play favorites in a public forum – permitting some messages and prohibiting others,” Rao wrote in the opinion. “We conclude the Foundation has plausibly alleged the District’s selective enforcement of the defacement ordinance constituted viewpoint discrimination in a public forum in violation of the First Amendment.”

Rao was joined in her opinion by Circuit Court Judges Robert L. Wilkins, who was nominated to the federal bench in 2010 by former President Barack Obama, and J. Michelle Childs, who was nominated to the D.C. Circuit in 2022 by President Joe Biden.

Although Rao’s opinion found the groups had plausibly argued viewpoint discrimination, the panel’s opinion did not reach a ruling on whether the city had violated the anti-abortion protesters’ First Amendment rights. The opinion sends the case back to D.C. District Chief Judge James Boasberg for further arguments. The lawsuit seeks to declare the defacement unconstitutional as applied to the anti-abortion groups as well as damages and attorneys fees.

In court filings, the D.C. Attorney General’s Office argued the city’s enforcement of the defacement statute was “content-neutral” and noted 22 other arrests were made for violations of the ordinance between May 30, 2020 and December 31, 2020, including six made in connection with that summer’s racial justice protests.