In Washington, D.C., the anti-abortion groups Frederick Douglass Foundation and Students for Life of America have filed suit against the District in federal court. Following the District’s decision to paint the message “Black Lives Matter” on 16th St NW in June, the groups say they were denied the right to paint an anti-abortion slogan on another D.C. street.
The groups wanted to paint “Black Pre-Born Lives Matter” on the street outside of Planned Parenthood’s Carole Whitehill Moses Center on 4th St NE. They were not granted explicit permission by the District to do so. But the suit claims the groups were given verbal permission by a Metropolitan Police Department officer, who told them “that the Mayor had ‘opened Pandora’s Box’ and therefore the police officer would not be able to stop the attendees from painting their similar “Black Pre-Born Lives Matter” mural on the public street,” according to the lawsuit.
But when the anti-abortion activists showed up on Aug. 1 for a rally and to paint or chalk their message in the street, MPD officers told them they’d be arrested for even chalking the message. Two members of Students for Life of America chalked anyway and were arrested.
The suit claims the District improperly used its laws against defacement of public property “as a tool to silence disfavored speech.”
“The city shouldn’t be able to silence and punish us for expressing ideas that it doesn’t agree with,” said Frederick Douglass Foundation Virginia Chapter President J.R. Gurley, who is also a plaintiff in the lawsuit, in a press release.
“Government officials can’t discriminate against peaceful displays on the basis of our beliefs about abortion when they have allowed other groups the same avenues to express their beliefs. If the mayor allows other messages to be painted and chalked, we should be able to express our views in the same manner without fear of unjust government punishment.”
This is not the first time conservative-leaning groups have sued D.C. over the Black Lives Matter Plaza mural. Conservative legal advocacy organization Judicial Watch brought suit in D.C. Superior Court against the District this summer after they were denied the opportunity to paint their slogan — “Because No One Is Above The Law!” — on another city street.
Judicial Watch also filed a Freedom of Information Act lawsuit against the District for not responding to requests for information about the cost, communications, and policy procedures surrounding the Black Lives Matter mural. The District, for its part, argued in legal filings that its FOIA response timelines are extended due to the coronavirus public health emergency.
What does the Constitution say?
Some legal experts say some of the conservative groups’ arguments are flawed on the grounds that First Amendment free speech protections don’t actually apply to the District’s “Black Lives Matter” mural. The amendment protects private speech, not government speech — so when the government is doing the speaking, it’s not necessarily obligated to offer up space for other opinions. Every time the government commissions a mural or a statue, it doesn’t have to provide space for opposing artwork.
“When the government is the speaker itself, the First Amendment doesn’t apply. The free speech clause of the First Amendment regulates private speech. It doesn’t regulate government speech,” attorney Shannon T. O’Connor told DCist/WAMU in August when the first lawsuits were filed. “And the Supreme Court has held that.”
But there are other things to consider beyond just the District-commissioned “Black Lives Matter” mural. Activists added their own twist to the government’s original message, painting “Defund the Police” on 16th St NW (the District eventually repaved over the message, but it was allowed to stay up for two months). Protesters also chalked and painted smaller messages on the streets and put up protest artwork with messages about racial justice.
The new lawsuit quotes from a letter the anti-abortion groups sent to the Bowser administration before their action in August: “Your original decision to paint ‘Black Lives Matter’ on the street is government speech. However, your decision to allow protestors to paint ‘Defund the Police’ opened the streets up as a public forum. You are not permitted to discriminate on the basis of viewpoint in making determinations relating to public assemblies in public fora.”
This line of reasoning came up in the earlier Judicial Watch lawsuit, too. In that case, District attorneys suggested in filings that the “Defund the Police” mural was an extension of government speech, akin to privately-donated art being displayed in a public place.
Meanwhile, Students for Life of America and The Frederick Douglass Foundation are pressing home the point about D.C. streets becoming a public forum these days.
“The Constitution guarantees the right to peacefully express our views in the public square. If there is disagreement over contentious issues, the answer is always more speech, not censorship, fines, or jail time,” said Students for Life of America president Kristan Hawkins in a press release.