During the summer of 2020, the nation’s capital city didn’t just allow Black Lives Matter protesters to spray-paint public property with their message; Washington, D.C., Mayor Muriel Bowser actively joined the protest by directing staff to paint the words “Black Lives Matter” on a street across from the White House, rebranding a section as Black Lives Matter Plaza.
The District of Columbia took sides in an active political debate, joining ranks with the message that rioters proclaimed as they broke glass, looted stores, started fires, and put other citizens’ lives in danger. At least 26 died in the mayhem.
Meanwhile, a group of pro-life protesters decided to spread their own related message. They aimed to write “Black Pre-Born Lives Matter” on the sidewalk and asked the D.C. government for a permit to paint or chalk the message on the street or sidewalk.
After obtaining verbal consent from a police officer ahead of time, protesters with the Frederick Douglass Foundation and Students for Life of America asked police officers at a rally Aug. 1, 2020, if they could chalk their message on the sidewalk. Police refused. When they proceeded to tag the sidewalk, anyway, police arrested the protesters.
D.C. police repeatedly had allowed vandalism in the name of Black Lives Matter, standing back when protesters tagged streets, sidewalks, and buildings with that message. In one case, vandals spray-painted 16th Street NW, adding to the “Black Lives Matter” message the words “=Defund the Police.” D.C. authorities did not stop them or rush to erase the message.
In fact, the Frederick Douglass Foundation claims that the police officer who granted the pro-lifers verbal consent to mark the sidewalk ahead of their 2020 protest had noted that authorities appear not to care about vandalism.
The Frederick Douglass Foundation and Students for Life of America sued the District of Columbia, but a U.S. District Court judge in the city dismissed their claims. However, Judge Naomi Rao, writing for a three-judge panel of the U.S. Court of Appeals for the District of Columbia, reversed the lower court on one of the Douglass Foundation’s claims.
The district court had dismissed the claim that the D.C. government violated the plaintiffs’ equal protection rights under the 14th Amendment because the Douglass Foundation and Students for Life did not claim that D.C. officials had the motive to discriminate against the pro-life protesters. Rao upheld this dismissal, but she reversed the court’s dismissal of the free speech claim under the First Amendment.
The lower court had ruled that the plaintiffs had failed to make a case that the D.C. government engaged in viewpoint discrimination, violating the pro-lifers’ free speech rights. Rao reversed this decision, holding that “the foundation has plausibly alleged the district discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance.”
Rao’s ruling directs the lower court to reconsider the case, allowing the lawsuit to proceed after the district court prematurely dismissed it.
Under the Supreme Court’s First Amendment jurisprudence, the government cannot regulate certain forms of speech according to the particular view of a speaker.
“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction,” Justice Anthony Kennedy wrote in a key 1995 case involving the University of Virginia.
Rao’s ruling does not mean the Douglass Foundation and Students for Life have won the case—Rao has merely stated that, assuming their claims are true, they are likely to prevail against the D.C. government on the merits of the case. The plaintiffs still have a great deal of work ahead in proving this case, but Rao’s ruling reopened the courthouse doors.
The District of Columbia’s blatant double standard on Black Lives Matter seems to fit the dictionary definition of viewpoint discrimination, in part because the D.C. government went further than applying a double standard on vandalism.
The decision by Bowser, a Democrat, to direct government employees to spray-paint the words “Black Lives Matter” in 35-foot-long capital letters on a street only highlights just how extreme her bias goes. Cases like this make conservatives who live in the D.C. area feel like something less than citizens.
The arrest of pro-lifers only underscores the message that if you don’t agree with the government-enforced ideology on race and abortion, you don’t have the same rights. Even though the pro-life protesters were making the point that black babies—who are disproportionately killed by abortion—matter, the D.C. government appears to have decided that such an extension of city officials’ own ideology constitutes a form of heresy against the state religion.
Americans agree that the lives of black people do indeed matter, and Americans on all sides of the political spectrum expressed outrage over the death of George Floyd in 2020. But the slogan Black Lives Matter represents a political movement that inspired riots at the very time Bowser chose to endorse it as D.C. mayor.
On June 1, 2020, four days before Bowser had “Black Lives Matter” painted on 16th Street NW, rioters set fire to historic St. John’s Church across from the White House. (The mayor added a fresh coat of paint to the message in May 2021.)
Governments have the right to speak their own messages, but they don’t have the right to silence dissent from their political narrative. The Frederick Douglass Foundation and Students for Life of America finally will get their day in court, and D.C. officials may yet face the music for their blatant double standard.
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