Progressives for Speech Discrimination
Is Black Lives Matter speech better than that of abortion foes? By The Editorial Board Aug. 16, 2023 6:29 pm ET Black Lives Matter street in Washington. Photo: Amy Katz/Zuma Press Constitutional Law 101 teaches that the First Amendment forbids legislation that discriminates based on viewpoint. In a major victory for free speech, a D.C. Circuit Court of Appeals panel on Tuesday ruled that governments also can’t selectively enforce laws based on viewpoint. Pro-life advocates in Frederick Douglass Foundation v. D.C. challenged the district’s disparate enforcement of its anti-defacement law, which prohibits “willfully and wantonly . .
Black Lives Matter street in Washington.
Photo: Amy Katz/Zuma Press
Constitutional Law 101 teaches that the First Amendment forbids legislation that discriminates based on viewpoint. In a major victory for free speech, a D.C. Circuit Court of Appeals panel on Tuesday ruled that governments also can’t selectively enforce laws based on viewpoint.
Pro-life advocates in Frederick Douglass Foundation v. D.C. challenged the district’s disparate enforcement of its anti-defacement law, which prohibits “willfully and wantonly . . . writ[ing], mark[ing], draw[ing], or paint[ing] on public or private property” without the consent of the property owner or public official.
After George Floyd’s death in May 2020, Mayor Muriel Bowser commissioned a painting of “Black Lives Matter” to cover a street. People also plastered construction scaffolding with graffiti, murals, and photographs that included “Black Lives Matter” messages.
These protesters didn’t obtain permits for their graffiti, and none were punished for violating the defacement law. So when anti-abortion groups planned a small rally to proclaim “Black Pre-Born Lives Matter,” a police officer gave them verbal permission to paint their message on the street because he believed the mayor had opened public property to political markings.
He was mistaken. When two pro-life supporters tried to chalk “Black Pre-Born Lives Matter” on the sidewalk, they were arrested. Pro-life groups were also denied permission at another rally to mark up the street or sidewalk. They sued the city for violating the First Amendment by selectively enforcing its defacement law based on viewpoint.
A D.C. Circuit panel ruled 3-0 in their favor. While governments enjoy discretion over when and how they prosecute laws, “the executive cannot selectively enforce the law in a way that violates the Constitution,” Judge Neomi Rao wrote. This means governments must treat similarly-situated individuals and groups similarly when they restrict speech.
“The government may not play favorites in a public forum—permitting some messages and prohibiting others,” Judge Rao stressed. This may seem like common sense, but progressive politicians need to be reminded of it.
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