WASHINGTON − A federal appeals court has sided with anti-abortion protesters on First Amendment grounds, ruling that the District of Columbia likely discriminated by arresting them for using chalk on a sidewalk but not Black Lives Matter protesters engaged in similar activity.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously reversed a lower court’s opinion in favor of city officials on Tuesday, allowing the lawsuit to continue. It was not immediately clear whether Washington officials would appeal the ruling.
City police arrested two anti-abortion protesters in summer 2020 for chalking “Black Pre-Born Lives Matter” onto a public sidewalk in violation of the city’s vandalism ordinance. The appeals court said the city “all but abandoned enforcement” of that same ordinance for protesters writing “Black Lives Matter” on public and private property after the killing of George Floyd by Minneapolis police.
“The government may not play favorites in a public forum − permitting some messages and prohibiting others,” the appeals court panel wrote. “Access to public fora must be open to everyone and to every message on the same terms.”
The plaintiffs were represented by the conservative Alliance Defending Freedom. Erin Hawley, ADF’s vice president, said the group was pleased with the decision. “Every American deserves for their voice to be heard as they engage in important cultural and political issues of the day,” she said.
The attorney general for the District of Columbia did not respond to a request for comment. Two of the judges on the panel were appointed by Democratic presidents and one was named by a Republican.
