The U.S. Court of Appeals for the District of Columbia Circuit found the city "all but abandoned enforcement of the defacement ordinance" during the Black Lives Matter protests and riots in 2020 while going after pro-life protesters who used chalk outside an abortion clinic.
The Frederick Douglass Foundation and Students for Life of America filed the lawsuit against the city after two pro-life activists were arrested in 2020. The court agreed Washington, D.C. "selectively" enforced the anti-graffiti ordinance and found numerous examples of BLM vandals getting away with defacing property with anti-police messages:
The District all but abandoned enforcement of the defacement ordinance during the Black Lives Matter protests, creating a de facto categorical exemption for individuals who marked 'Black Lives Matter' messages on public and private property. The complaint offers a number of examples. The day after Mayor Bowser’s street mural was revealed, protestors added an equal sign and 'Defund the Police,' so the message read 'Black Lives Matter = Defund the Police.'
Police officers watched as the alteration took place and did nothing to stop it. Although the Black Lives Matter advocates did not seek a permit or otherwise receive consent, they were neither arrested nor charged under the defacement ordinance. In fact, the District left the addition in place for months, eventually removing it in mid-August.
Another example the court cited was when protesters "covered construction scaffolding outside the Chamber of Commerce with graffiti, murals, and photographs. Again the protesters were neither stopped nor arrested for blatant violations of the defacement ordinance."
"Specifically, selective enforcement of a neutral and facially constitutional law may run afoul of the FirstAmendment if the government’s prosecutorial choices turn on the content or viewpoint of speech. It is well established the government 'may not regulate speech based on its substantive content or the message it conveys,'" the court said.
“It’s very encouraging that there was a unanimous 3-0 decision in favor of the free speech rights of pro-life students, peacefully protesting in our nation’s capital,” said Students for Life of America President Kristan Hawkins. “Viewpoint discrimination is un-American, and, as the case proceeds, we look forward to learning more about how D.C. officials picked winners and losers in their enforcement. Free speech rights you’re afraid to use don’t really exist, and we will keep fighting for the rights of our students to stand up for the preborn and their mothers, and against the predatory abortion industry led by Planned Parenthood.”
