The DC Circuit Court of Appeals, a three-judge panel, ruled Tuesday that the District of Columbia used “anti defacement” ordinances as a way to punish prolife activists and refused to enforce the law against Black Lives Matter rioters. A federal judge dismissed the Frederick Douglass Foundation’s claim in an earlier court case.

Neomi Rao, a Trump appointee who wrote the 3-0 ruling, found that the pro-life activist had been punished based on their political views.

The government cannot enforce laws in such a way that it picks winners and losers in public debates. The First Amendment protections of free speech would be undermined if the government were to pass a law that was content-neutral and then discriminate under the guise of prosecutorial discretion against certain viewpoints.

On August 1, 2020, two pro-life activists who wrote “Black Pre-Born Lives Matter in Chalk” on a sidewalk in DC were arrested. The court’s opinion notes that this arrest occurred in the context of massive street protests in DC, which resulted in many things being painted over, but no one from the DC government seemed to care.

The court’s decision states that “during the summer of 2020 thousands of protesters filled the streets in the District with the message ‘Black Lives Matter’.” “Over a period of several weeks, protesters painted and covered storefronts and sidewalks with chalk and paint.” “The defacing was widespread and clearly in violation of the District of Columbia’s ordinance on defacing, but none of the protesters have been arrested.”

The District of Columbia’s situation was made worse by the fact that the group applied for, and received, a permit for a protest in front of a Planned Parenthood clinic.

The Foundation received a permit for assembly in the weeks leading up to the rally. A police officer verbally granted the Foundation permission to paint the “Black Pre-Born Lives Matters” message on the streets during a conversation regarding the permit. The officer said that he thought Mayor Bowser opened the streets of the District to political markings. The Foundation sent Mayor Bowser a letter asking him to paint a wall mural, and declaring that it was a constitutionally protected right. Mayor Bowser didn’t respond.

Six police cars, as well as many officers, were waiting for the pro-life activists to arrive at their rally in August. Officers told the pro-life advocates that they could gather in accordance with a permit from the Foundation, but if the message was painted or chalked on the sidewalk they would be arrested. Two students decided to write “Black Pre-Born Lives Matters” on the street. The message was written in small letters using washable chalk. Despite this, both students were arrested. The whole event was captured on video.

The District of Columbia’s action should be seen through the lens of the Department of Justice, which is increasing legal pressure on prolife activists following the Dobbs Vs. Jackson Women’s Health decision that overturned Roe vs Wade. In 2022, 26 pro-lifers were charged with federal crimes for past violations.