Today the U.S. Court of Appeals for the D.C. Circuit revived a lawsuit against the District of Columbia for selective enforcement of the district's defacement ordinance in violation of the First Amendment. Judge Rao wrote for the court in Frederick Douglass Foundation v. District of Columbia, joined by Judge Childs, reversing the district court's dismissal of the Foundation's First Amendment claim, but affirming dismissal of an Equal Protection claim. Judge Wilkins concurred in the judgment.
Judge Rao's opinion for the court summarizes the case and decision as follows:
The First Amendment prohibits government discrimination on the basis of viewpoint. "To permit one side … to have a monopoly in expressing its views … is the antithesis of constitutional guarantees." City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm'n, 429 U.S. 167, 175–76 (1976). The protection for freedom of speech applies not only to legislation, but also to enforcement of the laws. This case concerns a constitutional challenge to the selective enforcement of the District of Columbia's defacement ordinance against some viewpoints but not others.
In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim "Black Lives Matter." Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District's defacement ordinance, yet none of the protesters were arrested. During the same summer, District police officers arrested two pro-life advocates in a smaller protest for chalking "Black Pre-Born Lives Matter" on a public sidewalk.
The organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America (collectively "the Foundation"), sued. The Foundation alleged violations of the First and Fifth Amendments, conceding the defacement ordinance was facially constitutional, but arguing the District's one-sided enforcement of the ordinance was not. The district court dismissed the complaint. Concluding the First Amendment and equal protection claims were essentially the same, the district court held the Foundation had failed to adequately allege discriminatory intent, which the court considered a necessary element of both claims.
We affirm the district court's dismissal of the Foundation's equal protection claim because the Foundation has not plausibly alleged invidious discrimination by District officials. Discriminatory motive, however, is not an element of a First Amendment free speech selective enforcement claim. The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government's motive. We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. We therefore reverse the dismissal of the Foundation's First Amendment claim and remand for further proceedings.
