Pro-Life Students Have the Same Free Speech Rights as BLM, Court Rules

In a triumph for both the right-to-life movement and the First Amendment, a federal appeals court has unanimously ruled that the government cannot use “selective enforcement” of the law to favor left-wing protesters but punish pro-life advocates. Favoring one political message over another clearly violates the constitutional right to freedom of speech, according to a three-judge panel that included two Democratic appointees.

The case originated when two groups of pro-life students and pro-life African Americans united to stand up for minority children. As fiery protests engulfed the nation during the summer of 2020, activists covered businesses and city streets with graffiti supporting the Marxist Black Lives Matter movement. Washington, D.C. Mayor Muriel Bowser (D) had the words “Black Lives Matter” painted on a city street near the White House — a message targeting then-President Donald Trump, who denounced BLM-inspired violence that vandalized at least 10 churches nationwide.

That inspired Students for Life of America and the Frederick Douglass Foundation to paint the words “Black Preborn Lives Matter” outside the D.C. Planned Parenthood abortion facility. Students say an officer reportedly assured the group no arrests would take place if they used tempera paint. But when they arrived at 5 a.m. on August 1, 2020, police threatened to arrest anyone who applied paint to the sidewalk. Two young people then began writing the message in chalk on the sidewalk.

Police promptly “arrested the two young students that worked with Students for Life,” said Dean Nelson, chairman of the Frederick Douglass Foundation. “All they did was write in chalk, something that’s done all throughout Washington, D.C., when young kids [play] hopscotch.”

“This is government censorship!” said Erica Caporaletti, then 22, one of the two young people arrested, as police approached her and Warner DePriest. After the arrests, officers told the media that permits to write on the sidewalk come from the D.C. Department of Transportation.

But the groups noted that officers took no action against protesters who violated the same city statute if their graffiti spread a message Bowser favored. Officials ignored BLM-inspired “destruction that happened in cities,” but D.C. cracked down on “an organization that wanted to make a public stand for the sanctity of life,” Nelson told “Washington Watch” on Wednesday.

“This is a clear case of discrimination against pro-life groups,” said the show’s guest host, former Congressman Jody Hice (R-Ga.). “The right of free speech is being aggressively attacked by the Left in this country.”

The pro-life groups sued Mayor Bowser, but a lower court threw out the lawsuit. On Tuesday, the Court of Appeals for the D.C. Circuit sided with the students.

“The government may not play favorites in a public forum — permitting some messages and prohibiting others,” wrote Judge Neomi Rao, a Trump appointee, on behalf of the unanimous panel. In the summer of 2020, BLM 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.”

“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,” wrote Rao.

“We hold the [Federick Douglass] Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance.” The judges reversed the lower court’s dismissal of the case and remanded it back for further legal proceedings.

The panel returned a unanimous, 3-0 opinion including Judge Robert Leon Wilkins, an Obama appointee, and Judge J. Michelle Childs, who was appointed by President Joe Biden.

“You cannot discriminate against viewpoint and expression according to the First Amendment,” Nelson declared. “We were grateful for the decision, which allows us to move forward with our case against Mayor Bowser in Washington, D.C.”

His fellow plaintiffs also celebrated the decision. “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,” said Students for Life of America President Kristan Hawkins. “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.”

“Sticking up for yourselves on campuses matters so much,” said Hawkins in an email statement to The Washington Stand.

“Washington officials can’t censor messages they disagree with. The right to free speech is for everyone,” said Erin Hawley, senior counsel at the Alliance Defending Freedom, which argued the case before the court. “Washington officials can’t censor messages they disagree with. The right to free speech is for everyone.”

Nelson refused to be intimidated by the police action, which took away two non-violent people in their 20s. “We continued to stand and protest and did a march later on that day,” said Nelson.

“When we stand up, we usually win,” responded Hice.