DC Circuit Upholds Ban On Anti-Abortion Chalking Protest In Front of White House

In Mahoney v. Doe, (DC Cir., June 21, 2011), a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of D.C.'s Defacement Statute that, among other things, prohibits writing or drawing on public property without the consent of the person in charge of the property.  Plaintiffs were denied permission to carry out an anti-abortion sidewalk chalk demonstration in front of the White House.  The court rejected both overbreadth and "as applied" free expression challenges.  Focusing on the "as applied" challenge, the court said :

[T]he Defacement Statute is content neutral, and substantially justified by the District’s esthetic interest in combating ...the defacement of public property. Because the District did not curtail Mahoney’s means of expression altogether, and allowed him to protest in front of the White House in other ways, the Defacement Statute is not unconstitutional as applied.

The court also rejected plaintiffs' claim that enforcing the statute against them violates the Religious Freedom Restoration Act because their protest was religiously motivated.  The court quoted prior precednt that held:

to make religious motivation the critical focus is . . . to read out of RFRA the condition that only substantial burdens on theexercise of religion trigger the compelling interest requirement.

Judge Kavanaugh also wrote a concurring opinion, declaring: "No one has a First Amendment right to
deface government property." (See prior related posting.)