Appeals Court Including Obama and Biden Appointees Find That D.C. Discriminated Against Pro-Life Protesters
A U.S. Court of Appeals for the District of Columbia panel including two Democratic appointees unanimously ruled that the nation’s capital discriminated against pro-life protesters it arrested on Tuesday.
“In the summer of 2021, thousands of protesters flooded the streets of the District to proclaim “Black Lives Matter.” Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District’s defacement ordinance, yet none of the protesters were arrested,” wrote Judge Neomi Rao for the panel, which included appointees of two Democratic presidents: Robert Wilkins (Obama) and Michelle Childs (Biden).
“During the same summer,” observed Rao, “District police officers arrested two pro-life advocates in a smaller protest for chalking ‘Black Pre-Born Lives Matter’ on a public sidewalk.”
“Selective enforcement of a neutral and facially constitutional law may run afoul of the First Amendment if the government’s prosecutorial choices turn on the content or viewpoint of speech,” noted Rao. “It is antithetical to a free society for the government to give ‘one side of a debatable public question an advantage in expressing its views to the people.”
“By making no arrests, the police effectively exempted advocates of the ‘Black Lives Matter’ message from the requirements of the ordinance,” continued the majority opinion, which contrasted the leniency with how the police department showed up “in force” to the pro-life protest where two activists were arrested. “Allowing the expression of one message while silencing another is quintessential viewpoint discrimination.”
Republicans have accused the Department of Justice of zealously prosecuting pro-life activists under the Freedom of Access to Clinic Entrances (FACE) Act while not actively pursuing cases concerning violence against crisis pregnancy centers and Catholic churches.
Attorney General Merrick Garland has denied those allegations and professed to have devoted “heavy resources” to identifying and arresting the guilty parties.
“These people who are doing this are clever, are doing this in secret, and I am convinced the FBI is trying to find them with urgency,” said Garland in March.
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