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Two groups and three individuals have sued the District of Columbia after anti-abortion activists were arrested on suspicion of chalking outside a Planned Parenthood.
The Frederick Douglass Foundation and Students for Life of America filed their lawsuit in federal court this week, alleging violations of the anti-abortion activists’ First and Fifth amendment rights, as well as of the Religious Freedom Restoration Act.
According to the lawsuit, the groups obtained a permit to hold a rally and paint a mural Aug. 1, and gathered for the activities about 6 a.m.
Washington, D.C., Mayor Muriel Bowser had previously commissioned a permanent “Black Lives Matter” mural; it was quickly followed by a mural identical in style that read “Defund the Police.”
The mural the anti-abortion activists’ groups intended to paint outside the Planned Parenthood Carole Whitehill Moses Center was to read “Black Pre-Born Lives Matter,” “to recognize the fact that Planned Parenthood and the abortion industry kill tens of thousands of unborn African American children in the womb each year,” the lawsuit says.
However, when the anti-abortion activists arrived for the rally, they were greeted by a large police presence, according to the lawsuit.
The plaintiffs allege they were informed at that point that if they used paint or washable chalk on the street or public sidewalk, they’d be arrested and jailed “under the District’s law prohibiting the defacement of public property.”
The district’s defacement ordinance prohibits many types of defacement, including writing, marking, drawing, or painting of property without consent of the property owner, “or, in the case of public property, of the person having charge, custody, or control thereof, any word, sign, or figure upon” any public or private mass transit facilities, monuments, offices, passenger vehicles and other types of property, the lawsuit says.
Two students decided to write in chalk on the public sidewalk despite officers’ warnings and were arrested immediately, before finishing writing their message, the plaintiffs claim.
“The Plaintiffs were prohibited from communicating their message, even though other messages are now permanently emblazoned along the streets of the District in a nearly identical format,” the lawsuit says. “The only difference between the Plaintiffs’ desired mural and the other permitted — and permanent — murals is the content of the message.”
The District of Columbia does indeed prohibit defacing public property, but the plaintiffs argue, those laws are aimed at preventing criminal activity, not “as a tool to silence disfavored speech.”
Plaintiff and Frederick Douglass Foundation Virginia Chapter president J.R. Gurley said in a press release the city shouldn’t be allowed to punish the anti-abortion activists for expressing ideas simply because it disagrees with those ideas, according to DCist.
“Government officials can’t discriminate against peaceful displays on the basis of our beliefs about abortion when they have allowed other groups the same avenues to express their beliefs,” Gurley said.
According to DCist, other groups have sued the District of Columbia over Black Lives Matter Plaza murals. Judicial Watch filed a lawsuit over the summer after they claim they were denied the ability to paint the slogan “Because No One Is Above The Law!” on another street.
“The government can’t discriminate against certain viewpoints by allowing some voices to be heard while silencing others,” Alliance Defending Freedom legal counsel, representing the plaintiffs, said in a statement, according to The Washington Post. “The First Amendment prohibits the government from picking and choosing whose speech to allow.”
However, an attorney familiar with the issue told the DCist and WAMU radio in August that First Amendment protections don’t apply “when the government is the speaker itself.”
“The free speech clause of the First Amendment regulates private speech. It doesn’t regulate government speech. And the Supreme Court has held that.”
The anti-abortion activists are asking the court to declare the defacement ordinance to be unconstitutional as it was applied to the plaintiffs because it violates their freedom of speech, association and right to due process.
They are also seeking preliminary and permanent injunctive relief against the ordinance; awards of actual and nominal damages; litigation costs, including attorneys’ fees; and any other relief the Court deems appropriate.
Do you think the anti-abortion activists were arrested lawfully? Tell us your thoughts in the comments below.
The plaintiffs are represented by Kristen K. Waggoner, Kevin H. Theriot, Elissa M. Graves and David A. Cortman of Alliance Defending Freedom.
The Anti-Abortion Activists Civil Rights Lawsuit is The Frederick Douglass Foundation Inc. v. District of Columbia, et al., Case No. 1:20-cv-03346, in the U.S. District Court for the District of Columbia.
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