In Frederick Douglas Foundation, Inc. v. District of Columbia, (DC Cir., Aug.15, 2023), the U.S. Court of Appeals for the D.C. Circuit held that a pro-life group can move ahead with its viewpoint discrimination claim against the D.C. government, but not its equal protection claim. Plaintiffs alleged that D.C. did not enforce its defacement ordinance against "Black Lives Matter" protesters who chalked or painted protest signs on public and private property. However it did enforce the ordinance against pro-life protesters who wished to paint or chalk "Black Pre-Born Lives Matter" on sidewalks or streets. The court said in part:
... [T]o make out a First Amendment selective enforcement claim, the Foundation is not required to allege discriminatory intent. Viewpoint discrimination violates the First Amendment, “regardless of the government’s benign motive … or lack of animus toward the ideas contained in the regulated speech.”... “Innocent motives do not eliminate the danger of censorship.”...
The Foundation, in the alternative, frames its selective enforcement claim in terms of equal protection. To the extent a separate equal protection claim for viewpoint discrimination arises under the Fifth Amendment, the Foundation has failed to allege an essential element—purposeful discrimination. Even taking the facts in the light most favorable to the Foundation, we find it has not put forward plausible evidence of the District’s animus....
The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others.... The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.
Judge Wilkins filed a concurring opinion, saying in part:
In my view, even though the Foundation must meet the high bar of pleading purposeful discrimination to prevail on its First Amendment claim,.. the high standard is met here.
ADF issued a press release announcing the decision.
