531 F.Supp.3d 316
D.D.C.2021Background
- In June 2020 D.C. public works painted a government-sponsored “Black Lives Matter” street mural; private protesters later painted “Defund the Police” nearby and the city removed that addition about two months later.
- Frederick Douglass Foundation (FDF) and Students for Life of America (SFLA) planned an August 1, 2020 rally at a Northeast D.C. Planned Parenthood to paint “Black Pre-Born Lives Matter.”
- Plaintiffs applied for an assembly permit and requested permission to paint; MPD approved the assembly but expressly denied permission to mark or paint the street.
- During the August event two attendees chalked the sidewalk after police warnings and were arrested; the rest of the protest proceeded with signs and bullhorns.
- Plaintiffs sued the District (Nov. 18, 2020), asserting five claims (First Amendment viewpoint discrimination/as-applied, Fifth Amendment equal protection, expressive association, RFRA, Free Exercise) and sought a preliminary injunction to allow painting at a March 27, 2021 rally.
- The court denied the preliminary-injunction motion, concluding Plaintiffs failed to show a likelihood of success on any claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment — content/viewpoint discrimination (as-applied) | Plaintiffs say D.C. selectively enforced the Defacement Ordinance, allowing pro-BLM markings while prohibiting their anti-abortion mural. | D.C. says the Ordinance is content-neutral, enforcement differences reflect context, safety, and discretion, not viewpoint. | Denied — court treated the street as public forum but found no convincing pattern of viewpoint-based enforcement; Ordinance is content-neutral, narrowly tailored to aesthetic/public-safety interests, and leaves ample alternatives. |
| Equal Protection (selective enforcement) | Plaintiffs claim similarly situated groups were treated differently based on viewpoint. | D.C. says relevant incidents are not similarly situated and any disparities stem from legitimate enforcement discretion. | Denied — plaintiffs failed to show they were similarly situated or that enforcement was motivated by impermissible intent. |
| RFRA | Individual plaintiffs argue enforcement substantially burdens their religious exercise (pro-life advocacy via street painting). | D.C. argues no substantial burden because plaintiffs retain many alternative means to express religiously motivated views. | Denied — court found no substantial burden; painting is one of many channels and RFRA claim lacks merit (Mahoney/Archdiocese precedent). |
| Free Exercise | Plaintiffs contend the Ordinance was not neutrally or generally applied to religiously motivated speech. | D.C. contends the Ordinance is facially neutral and generally applicable and was applied without religious targeting. | Denied — plaintiffs failed to show a substantial burden or nonneutral, non-general application. |
| Expressive Association | Plaintiffs assert their right to associate for expressive activity was infringed by prohibiting the group painting. | D.C. says preventing one medium of expression does not impair associational rights; no interference with group membership or internal organization. | Denied — plaintiffs did not plausibly show how enforcement impaired associative rights. |
Key Cases Cited
- Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011) (upholding application of D.C. defacement statute to chalking; controlling framework for forum/TPM analysis)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time, place, and manner test: content-neutrality, narrow tailoring, and ample alternatives)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (U.S. 1985) (forum analysis for public vs. nonpublic fora)
- Lukumi v. City of Hialeah, 508 U.S. 520 (U.S. 1993) (neutrality and general applicability principles in Free Exercise context)
- Taxpayers for Vincent v. City of Los Angeles, 466 U.S. 789 (U.S. 1984) (government may regulate medium of expression to serve aesthetic interests)
- Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640 (U.S. 1981) (limits on granting special exemptions undermine valid TPM regulations)
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (U.S. 2008) (preliminary-injunction standard)
- Matal v. Tam, 137 S. Ct. 1744 (U.S. 2017) (government-speech caution and viewpoint discrimination principles)