For years, Republicans and fair-minded people have expressed concern about the unequal application of the law in the area of First Amendment protections. For example, churches during the COVID-19 pandemic were famously restricted from meeting, but protests for the “Black Lives Matter” movement were allowed to go forward. Last week marked the courts stepping in to push back and uphold the First Amendment:
The U.S. Court of Appeals for the D.C. Circuit, in a unanimous 3-0 decision, found that two anti-abortion groups had plausibly alleged that the D.C. government “discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance.”
The groups, the Frederick Douglass Foundation and Students for Life of America, sued the D.C. government in 2021 after local police arrested two protesters who wrote “Black Pre-Born Lives Matter” on a public sidewalk during an August 2020 demonstration.
The foundation claimed D.C. authorities abandoned enforcement of the anti-graffiti law during widespread protests in the city following the murder of George Floyd by police in Minneapolis. Yet that same summer, the group claimed, the restriction was “vigorously” enforced against them.
The D.C. Circuit’s well-crafted decision cites Archdiocese of Washington v. Washington Metropolitan Area Transit Authority which states:
“[G]overnment favoritism in public debate is so pernicious to liberty and democratic decisionmaking” that viewpoint discrimination will almost always be “rendered unconstitutional.”
As the D.C. Circuit concludes:
The government may not play favorites in a public forum—permitting some messages and prohibiting others.
The lawyers representing the protesting students were from the Alliance Defending Freedom. As they explained:
“Washington officials can’t censor messages they disagree with. The right to free speech is for everyone, and we’re pleased the D.C. Circuit agreed that the Frederick Douglass Foundation and Students for Life should be able to exercise their constitutionally protected freedom to peacefully share their views the same as anyone else,” said ADF Senior Counsel Erin Hawley, vice president of the ADF Center for Life and Regulatory Practice, who argued before the court on behalf of the pro-life organizations. “Every American deserves for their voice to be heard as they engage in important cultural and political issues of the day.”
Congratulations to ADF on this victory for First Amendment rights. It is important we recognize the D.C. Circuit's decision as a victory for equal justice.