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Court: Students for Life’s lawsuit can proceed after D.C. banned ‘Black pre-born lives matter’ displays

Government ‘permitted’ similar Black Lives Matter messages, court ruled

Two pro-life organizations won a victory Tuesday in federal court after Washington, D.C. authorities rejected their request to create a chalk display on the public sidewalk while allowing similar Black Lives Matter messages.

In a unanimous decision, the U.S. Court of Appeals for the District of Columbia stated Students for Life of America and the Frederick Douglass Foundation have a “plausible” First Amendment discrimination case against the district.

“The government may not enforce the laws in a manner that picks winners and losers in public debates,” the judges wrote. “It would undermine the First Amendment’s protections for free speech if the government could enact a content-neutral law and then discriminate against disfavored viewpoints under the cover of prosecutorial discretion.”

The lawsuit centers around a D.C. ordinance that prohibits defacing public and private property. According to the ruling, district leaders “permitted” Black Lives Matter protesters to repeatedly and openly violate the ordinance in the summer of 2020.

That same August, however, police arrested two pro-life advocates for chalking “black pre-born lives matter” on the public sidewalk.

In its ruling Tuesday, the appeals court said the pro-life groups have “plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance.”

The three-judge panel reversed a decision dismissing the lawsuit, and sent the case back to the lower court for trial.

Representing the pro-life organizations, Alliance Defending Freedom senior counsel Erin Hawley said she is pleased the court recognized the government’s discriminatory actions.

“Washington officials can’t censor messages they disagree with,” Hawley said in a statement, adding that everyone “should be able to exercise their constitutionally protected freedom to peacefully share their views the same as anyone else.”

Students for Life and the Frederick Douglass Foundation, a conservative black organization, filed the case almost three years ago, alleging D.C. Mayor Muriel Bowser and other district leaders violated their First and Fifth Amendment rights.

In June 2020, district leaders supported protests about the death of George Floyd while in police custody, and approved the creation of a mural displaying the phrase “Black Lives Matter” on a city street.

According to the ruling, protesters also painted “Defund the Police” and other messages on public and private property all across the city, but the government did not enforce the defacement ordinance.

The ruling pointed out D.C. has effectively banned the pro-life messaging by refusing to allow the Frederick Douglass Foundation from writing “Black pre-born lives matter” in 2021.

But district officials treated pro-life advocates very differently on Aug. 1, 2020 outside a Planned Parenthood facility in downtown D.C., the ruling pointed out.

During an approved protest hosted by the two pro-life organizations, police arrested Warner DePriest and Erica Caporaletti for writing “Black pre-born lives matter” in washable chalk on a public street, The College Fix reported at the time.

Prior to the event, the pro-life organizations said they asked Bowser’s office for permission to paint the pro-life message on the street but did not receive a response. They said a city police officer later gave them “verbal permission.”

“The officer explained that he believed Mayor Bowser had effectively opened up the district’s streets for political markings,” according to the case.

Responding this week, Students for Life of America President Kristan Hawkins said she felt encouraged by the unanimous ruling and expressed hope for an ultimate victory.

“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,” Hawkins said in a statement.

MORE: Students for Life sues D.C. for ban on ‘Black preborn lives matter’ mural after allowing anti-police mural

IMAGE: YouTube screenshot / Students for Life

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About the Author
Micaiah Bilger is an assistant editor at The College Fix.