Frederick Douglass Foundation, Inc. v. District of Columbia
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FREDERICK DOUGLASS FOUNDATION, INC., et al.,
Plaintiffs, v. Civil Action No. 20-3346 (JEB) DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Large gatherings often spawn expression in a variety of forms, and last summer’s protests
sparked by the killing of George Floyd in Minneapolis were no exception. Tens of thousands of
demonstrators flooded the streets of downtown Washington, chanting their messages for all to
hear and brandishing signs adorned with pithy mantras. Some, however, took matters a step
further and attempted to leave a more lasting imprint on their physical surroundings.
Notwithstanding the District of Columbia’s ban on defacing public property, see D.C. Code
§ 22–3312.01, they chalked and graffitied their messages on sidewalks and streets. Others
painted the phrase “Defund the Police” in yellow block letters adjacent to a prominent, city-
commissioned street mural reading, “Black Lives Matter.”
This case is indeed about speech in the nation’s capital, but with a different message. It
arises from a lower-profile protest in sharply contrasting circumstances — including far fewer
activists, a separate part of the city, and a different moment in time. On August 1, 2020, a few-
dozen people held an anti-abortion demonstration outside a Planned Parenthood clinic in
Northeast D.C. Their goal, piggybacking on the earlier protests, was to paint the words “Black
1 Pre-Born Lives Matter” in the same block-wide proportions that characterized the street murals
two miles away outside the White House. Although District police, consistent with the city’s
Defacement Ordinance, denied the sponsoring group permission to mark the street in any
capacity over a week before the gathering, and although officers reiterated those warnings on the
morning of the event, two individuals nonetheless attempted to scrawl their message in chalk on
a sidewalk. After ignoring renewed commands to cease defacing public property, they were
promptly arrested. The protest otherwise continued without further incident.
Two organizations and three individuals behind this assembly eventually brought this suit
against the District, claiming that its enforcement of the Defacement Ordinance against them —
but not against others voicing distinct messages earlier in the summer — contravened the First
Amendment’s prohibition of viewpoint discrimination, as well as several other constitutional and
statutory provisions. They subsequently moved for a preliminary injunction, requesting that the
Court bar the District from enforcing the Ordinance against them when they once again attempt
to coat their desired message on a public street during a forthcoming rally on March 27, 2021.
Unfortunately for Plaintiffs, the Court can offer them no succor here, as they have not
established a likelihood of success on any of their five claims. It will accordingly deny their
Motion.
I. Background
The Court begins with a brief overview of pertinent statutory provisions surrounding
assemblies and protests in the District, then turns to the facts giving rise to this suit, and
concludes with its procedural history.
2 A. First Amendment Assemblies in the District
The District’s First Amendment Rights and Police Standards Act of 2004 declares it the
city’s policy to permit “peaceful First Amendment assemblies on the streets, sidewalks, and
other public ways.” D.C. Code § 5–331.03. Such assemblies, however, are “subject to
reasonable restrictions designed to protect public safety, persons, and property, and to
accommodate the interest of persons not participating in the assemblies to use the streets,
sidewalks, and other public ways.” Id. Groups are generally required to provide notice to and
seek approval from the District prior to holding a First Amendment assembly so that the city can
allocate police protection and otherwise assist participants. Id. § 5–331.05(b)–(c); but see id.
§ 5–331.05(d) (listing exceptions). The Metropolitan Police Department may also enforce
“reasonable time, place, and manner restrictions” on an assembly, either prior to the event
through approval of a plan, or during the event (regardless of whether it has been approved). Id.
§ 5–331.04(b); see also id. § 5–331.04(b)(2) (listing additional criteria for restrictions enforced
during assembly for which plan has been approved).
One restriction applicable during assemblies, and of particular relevance here, is the
city’s Anti-Intimidation and Defacing of Public or Private Property Criminal Penalty Act of 1982
— otherwise known as the Defacement Ordinance. It provides, in part, as follows:
It shall be unlawful for any person or persons willfully and wantonly . . . to write, mark, draw, or paint, without the consent of the owner or proprietor thereof, or, in the case of public property, of the person having charge, custody, or control thereof, any word, sign, or figure upon: Any property, public or private, building, statue, monument, office, public passenger vehicle, mass transit equipment or facility, dwelling or structure of any kind . . . .
D.C. Code § 22–3312.01. “Property” is defined to include streets and sidewalks. Id. § 22–
3312.05(9). The District enforces the Ordinance against defacement of public and private
3 property when it becomes aware of violations and is able to identify suspects. See ECF No. 13-2
(Declaration of Guillermo Rivera), ¶ 4.
B. Factual Background
As Plaintiffs’ claims rely in substantial part on the District’s allegedly favored treatment
of property defacement that occurred during select protests predating their own, the Court will
begin there, before eventually shifting to the critical August assembly. Given the thin nature of
the present evidentiary record, the Court draws some of the operative facts from the parties’
briefing.
On June 5, 2020, in the heat of the demonstrations that took the District — and cities
across the nation — by storm, Mayor Muriel Bowser commissioned a mural on a two-block
stretch of 16th Street immediately north of the White House. See ECF No. 13-1 (Def. Opp.) at 5.
Artists from a program within the District’s Department of Public Works painted the words
“Black Lives Matter” on the street in bolded yellow letters. Id. The design, which also featured
the D.C. flag (three stars over two bars), remains in place to this day.
Less than 24 hours later — on a Saturday that witnessed thousands fill the city’s
downtown blocks — protesters unaffiliated with the District left their own mark on 16th Street.
With paint supplies in tow, they blotted out the stars at the top of the D.C. flag emblazoned next
to the “Black Lives Matter” mural and added a new message — “Defund the Police” — of far
smaller but nonetheless considerable size. See ECF No. 1 (Compl.), ¶ 36. The effect of the
amendment was that the mural appeared to state, “Black Lives Matter = Defund the Police.”
Def. Opp. at 6. No permit was issued for the event at which the painting occurred, and MPD had
no warning or advance notice of the protesters’ plans. See Rivera Decl., ¶ 6. The following day,
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FREDERICK DOUGLASS FOUNDATION, INC., et al.,
Plaintiffs, v. Civil Action No. 20-3346 (JEB) DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Large gatherings often spawn expression in a variety of forms, and last summer’s protests
sparked by the killing of George Floyd in Minneapolis were no exception. Tens of thousands of
demonstrators flooded the streets of downtown Washington, chanting their messages for all to
hear and brandishing signs adorned with pithy mantras. Some, however, took matters a step
further and attempted to leave a more lasting imprint on their physical surroundings.
Notwithstanding the District of Columbia’s ban on defacing public property, see D.C. Code
§ 22–3312.01, they chalked and graffitied their messages on sidewalks and streets. Others
painted the phrase “Defund the Police” in yellow block letters adjacent to a prominent, city-
commissioned street mural reading, “Black Lives Matter.”
This case is indeed about speech in the nation’s capital, but with a different message. It
arises from a lower-profile protest in sharply contrasting circumstances — including far fewer
activists, a separate part of the city, and a different moment in time. On August 1, 2020, a few-
dozen people held an anti-abortion demonstration outside a Planned Parenthood clinic in
Northeast D.C. Their goal, piggybacking on the earlier protests, was to paint the words “Black
1 Pre-Born Lives Matter” in the same block-wide proportions that characterized the street murals
two miles away outside the White House. Although District police, consistent with the city’s
Defacement Ordinance, denied the sponsoring group permission to mark the street in any
capacity over a week before the gathering, and although officers reiterated those warnings on the
morning of the event, two individuals nonetheless attempted to scrawl their message in chalk on
a sidewalk. After ignoring renewed commands to cease defacing public property, they were
promptly arrested. The protest otherwise continued without further incident.
Two organizations and three individuals behind this assembly eventually brought this suit
against the District, claiming that its enforcement of the Defacement Ordinance against them —
but not against others voicing distinct messages earlier in the summer — contravened the First
Amendment’s prohibition of viewpoint discrimination, as well as several other constitutional and
statutory provisions. They subsequently moved for a preliminary injunction, requesting that the
Court bar the District from enforcing the Ordinance against them when they once again attempt
to coat their desired message on a public street during a forthcoming rally on March 27, 2021.
Unfortunately for Plaintiffs, the Court can offer them no succor here, as they have not
established a likelihood of success on any of their five claims. It will accordingly deny their
Motion.
I. Background
The Court begins with a brief overview of pertinent statutory provisions surrounding
assemblies and protests in the District, then turns to the facts giving rise to this suit, and
concludes with its procedural history.
2 A. First Amendment Assemblies in the District
The District’s First Amendment Rights and Police Standards Act of 2004 declares it the
city’s policy to permit “peaceful First Amendment assemblies on the streets, sidewalks, and
other public ways.” D.C. Code § 5–331.03. Such assemblies, however, are “subject to
reasonable restrictions designed to protect public safety, persons, and property, and to
accommodate the interest of persons not participating in the assemblies to use the streets,
sidewalks, and other public ways.” Id. Groups are generally required to provide notice to and
seek approval from the District prior to holding a First Amendment assembly so that the city can
allocate police protection and otherwise assist participants. Id. § 5–331.05(b)–(c); but see id.
§ 5–331.05(d) (listing exceptions). The Metropolitan Police Department may also enforce
“reasonable time, place, and manner restrictions” on an assembly, either prior to the event
through approval of a plan, or during the event (regardless of whether it has been approved). Id.
§ 5–331.04(b); see also id. § 5–331.04(b)(2) (listing additional criteria for restrictions enforced
during assembly for which plan has been approved).
One restriction applicable during assemblies, and of particular relevance here, is the
city’s Anti-Intimidation and Defacing of Public or Private Property Criminal Penalty Act of 1982
— otherwise known as the Defacement Ordinance. It provides, in part, as follows:
It shall be unlawful for any person or persons willfully and wantonly . . . to write, mark, draw, or paint, without the consent of the owner or proprietor thereof, or, in the case of public property, of the person having charge, custody, or control thereof, any word, sign, or figure upon: Any property, public or private, building, statue, monument, office, public passenger vehicle, mass transit equipment or facility, dwelling or structure of any kind . . . .
D.C. Code § 22–3312.01. “Property” is defined to include streets and sidewalks. Id. § 22–
3312.05(9). The District enforces the Ordinance against defacement of public and private
3 property when it becomes aware of violations and is able to identify suspects. See ECF No. 13-2
(Declaration of Guillermo Rivera), ¶ 4.
B. Factual Background
As Plaintiffs’ claims rely in substantial part on the District’s allegedly favored treatment
of property defacement that occurred during select protests predating their own, the Court will
begin there, before eventually shifting to the critical August assembly. Given the thin nature of
the present evidentiary record, the Court draws some of the operative facts from the parties’
briefing.
On June 5, 2020, in the heat of the demonstrations that took the District — and cities
across the nation — by storm, Mayor Muriel Bowser commissioned a mural on a two-block
stretch of 16th Street immediately north of the White House. See ECF No. 13-1 (Def. Opp.) at 5.
Artists from a program within the District’s Department of Public Works painted the words
“Black Lives Matter” on the street in bolded yellow letters. Id. The design, which also featured
the D.C. flag (three stars over two bars), remains in place to this day.
Less than 24 hours later — on a Saturday that witnessed thousands fill the city’s
downtown blocks — protesters unaffiliated with the District left their own mark on 16th Street.
With paint supplies in tow, they blotted out the stars at the top of the D.C. flag emblazoned next
to the “Black Lives Matter” mural and added a new message — “Defund the Police” — of far
smaller but nonetheless considerable size. See ECF No. 1 (Compl.), ¶ 36. The effect of the
amendment was that the mural appeared to state, “Black Lives Matter = Defund the Police.”
Def. Opp. at 6. No permit was issued for the event at which the painting occurred, and MPD had
no warning or advance notice of the protesters’ plans. See Rivera Decl., ¶ 6. The following day,
city employees restored the stars on top of what was originally the D.C. flag, thus eliminating the
4 appearance of an equals sign. See Def. Opp. at 6. The District did not remove the activists’
“Defund the Police” mural for approximately two months. Id.; ECF No. 8 (Pl. Mot.) at 5.
Protesters created additional graffiti art and affixed further messages, though of a
considerably less intrusive sort, on construction scaffolding outside the U.S. Chamber of
Commerce building a block away from the murals, as well as on the adjacent public street. See
Pl. Mot. at 6–8; Compl., ¶¶ 43, 48. The Chamber consented to the presence of the former
designs on its own property, even permitting activists to produce more. See Def. Opp. at 21.
According to Plaintiffs, the District “did not enforce [the Defacement Ordinance] against any
protestor of police brutality or use it to silence their speech in anyway [sic].” Pl. Mot. at 8.
While Defendant does not specifically dispute that contention with respect to the aforementioned
incidents, it indicates that the city made 22 arrests for violations of the Ordinance in the latter
half of 2020, including six “in connection with the Black Lives Matter protests.” Def. Opp. at 5;
see also Rivera Decl., ¶ 5; ECF No. 18 (Def. Reply) at 12, 17 n.4.
It is here that the Frederick Douglass Foundation and Students for Life of America —
Plaintiffs in this action — enter the story. FDF is a self-described “national education and public
policy organization . . . that advocates free-market and limited-government ideas.” Compl., ¶ 16.
SFLA, for its part, “is the nation’s largest youth pro-life organization” and “exists to recruit,
train, and mobilize pro-life students to abolish abortion.” Id., ¶¶ 26–27. Together, the two
groups planned a joint rally outside Planned Parenthood’s Carol Whitehill Moses Center in
Northeast D.C. — i.e., an entirely different quadrant of the city from the BLM protests. See
Compl., ¶¶ 51–52. In heavily freighted language, they describe their goal as “bring[ing]
attention to the fact that the abortion industry kills numerous preborn African-American children
every year.” ECF No. 8-1 (Declaration of Angela “Tina” Whittington), ¶ 4; see also Compl.,
5 ¶ 22 (“FDF . . . stands for and with Black America, including the most vulnerable among this
population: those black babies still in the womb.”).
The groups intended for this particular event — scheduled for August 1, 2020 — to
extend beyond mere chanting and signage. Specifically, they sought to paint on the city street
outside the Planned Parenthood facility, in a style and manner mimicking the murals emblazoned
just north of the White House, the phrase “Black Pre-Born Lives Matter.” Whittington Decl.,
¶ 4. The District learned of Plaintiffs’ aims well in advance of the rally date via their assembly-
permit application, which requested permission to paint — notwithstanding the Defacement
Ordinance — their envisioned mural during the forthcoming event. See Rivera Decl., ¶ 7.
Although MPD approved the request to assemble, informing the groups that they could “possess
bullhorns, music stand[s] and signs” and hold an event of their desired size (up to 49 people) at
their preferred time and place, it nonetheless expressly denied permission to paint or otherwise
mark the street. See ECF No. 13-3 (Assembly Plan Approval) at ECF p. 2 (“Marking or painting
the street is not permitted.”); see also Rivera Decl., ¶ 8. It also directed that all assembly
participants “must comply with all the conditions of this assembly approval plan and applicable
regulations and instructions issued by [MPD].” Assembly Plan Approval at ECF p. 2.
(Notwithstanding the permit’s express proscription of painting — which Plaintiffs never
acknowledge in their materials before this Court — an SFLA official maintains that an
unidentified MPD officer at an unknown time in advance of the rally gave her “verbal
permission” to paint the group’s message during the event. See Whittington Decl., ¶ 6.)
On the morning of the assembly, FDF and SFLA members arrived outside the Planned
Parenthood at the crack of dawn, some as early as 5:00 a.m. Id., ¶ 8; ECF No. 8-2 (Declaration
of Robert “J.R.” Gurley, Jr.), ¶ 5. Approximately 32 D.C. police officers were soon on the scene
6 pursuant to standard operating procedures for permitted First Amendment events. See ECF No.
13-4 (Declaration of Carlos Mejia), ¶ 4. When some protesters expressed their desire to paint the
city street, MPD informed them — in keeping with the terms of the event permit — that they
could not do so because such behavior would constitute defacement of property. Id., ¶ 5;
Whittington Decl., ¶ 8. Officers responded in the same manner upon demonstrators’ subsequent
request to chalk the sidewalk. See Mejia Decl., ¶ 5; Whittington Decl., ¶ 8. Despite those
admonitions, shortly before 7:30 a.m., two individuals began inscribing messages on the
sidewalk in chalk. See Mejia Decl., ¶ 6. When they continued to do so following renewed
warnings that failure to cease would lead to arrest, officers made good on their promises, taking
the two participants into custody. Id., ¶¶ 6–7. The protest continued on, with demonstrators
chanting and displaying their “Black Pre-Born Lives Matter” message on posters. See Def. Opp.
at 9. The two arrestees, having been released in relatively short order, promptly rejoined the
gathering. Id.; Mejia Decl., ¶ 7.
FDF and SFLA intend to hold a renewed rally on March 27, 2021, at which they will —
once again — attempt to coat the street with their painted slogan. See Whittington Decl., ¶ 9.
The groups desire that their design be “as large and as prominent as the ‘Black Lives Matter’ and
‘Defund the Police’ murals.” Id.
C. Procedural History
Hoping for clearance to paint during their 2021 event, FDF and SFLA — along with
three individual officers and members — filed this suit against the city on November 18, 2020.
Their Complaint, which asserts five claims, contends most prominently that the District has
enforced the Defacement Ordinance in a content- and viewpoint-discriminatory manner, thus
running afoul of the First Amendment. See Compl., ¶¶ 71–90. It also alleges violations of the
7 Fifth Amendment’s equal-protection guarantee, their expressive-association rights, the Religious
Freedom Restoration Act, and the Free Exercise Clause. Id., ¶¶ 91–140.
Precisely one month later, Plaintiffs filed this Motion for Preliminary Injunction, which
incorporates each of the Complaint’s five challenges. See Pl. Mot. An attachment states their
desired relief: an order enjoining the District from enforcing the Ordinance against them at their
March 27 rally and beyond, thereby enabling them to paint or chalk their messages of choice on
city streets and sidewalks. See ECF No. 8-4 (Proposed Order) at 1–2. Plaintiffs requested a
ruling from this Court prior to that date. See Pl. Mot. at 3. Concurrent with the filing of its
Opposition, the District moved to dismiss the Complaint for failure to state a claim. See Def.
Opp.; ECF No. 14-1 (Def. Mot.). Given the aforementioned time constraints, the present
Opinion resolves only Plaintiffs’ Motion.
II. Legal Standard
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary
injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to
suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in
his favor, and [4] that an injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388,
392 (D.C. Cir. 2011) (alterations in original) (quoting Winter, 555 U.S. at 20). “The moving
party bears the burden of persuasion and must demonstrate, ‘by a clear showing,’ that the
requested relief is warranted.” Hospitality Staffing Solutions, LLC v. Reyes, 736 F. Supp. 2d
192, 197 (D.D.C. 2010) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,
297 (D.C. Cir. 2006)).
Historically, these factors have “been evaluated on a ‘sliding scale.’” Davis v. Pension
8 Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009) (quoting Davenport v. Int’l Bhd. of
Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)). In other words, if the movant makes an
“unusually strong showing on one of the factors, then it does not necessarily have to make as
strong a showing on another factor.” Id. at 1291–92. This Circuit has hinted, though not held,
that Winter — which overturned the Ninth Circuit’s “possibility of irreparable harm” standard —
establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent,
free-standing requirement[s].’” Sherley, 644 F.3d at 392–93 (quoting Davis, 571 F.3d at 1296
(Kavanaugh, J., concurring)); see League of Women Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir.
2016) (declining to address whether “sliding scale” approach is valid after Winter). At any rate,
courts in our Circuit have squarely held that a failure to demonstrate a likelihood of success on
the merits alone is sufficient to defeat a preliminary-injunction motion. See Ark. Dairy Co-op
Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009).
III. Analysis
Plaintiffs contend that the District’s enforcement of the Defacement Ordinance against
them offends four separate constitutional provisions, along with RFRA. In this season of March
Madness, we are often reminded that basketball players (like litigants) miss 100% of the shots
they do not take; that does not mean, however, that simply piling on claims can transform a
weaker suit into something more fruitful. Such is the case here, as Plaintiffs do not find the rim
— or establish a likelihood of success — on any of their five shots.
The Court takes each of Plaintiffs’ claims in turn. As their free-speech challenge is the
most involved, the Court will devote most of its time there, before moving on to their equal-
protection, expressive-association, RFRA, and free-exercise claims.
9 A. Freedom of Speech
The First Amendment prohibits government entities from “abridging the freedom of
speech.” Plaintiffs argue that the District ran afoul of this guarantee by invoking the Defacement
Ordinance to curtail their endeavor to paint and chalk a public street with their message.
Plaintiffs, it should be noted, do not mount a facial challenge to the Ordinance; in other words,
they do not contend that it is unconstitutional in all, or even most, applications. Rather, they
purport to bring an as-applied claim, arguing only that it is unconstitutional as the District has
applied it to them in light of their own particular circumstances and the city’s enforcement
history. See Pl. Mot. at 15; Compl., ¶¶ 1, 87; see also Edwards v. District of Columbia, 755 F.3d
996, 1001 (D.C. Cir. 2014) (explaining that to prevail on as-applied free-speech challenge,
plaintiff must show statute is unconstitutional as applied to her particular expressive activity).
The Court begins with a detour into whether the First Amendment even provides the
proper legal framework for resolving Plaintiffs’ claim before concluding that, assuming it does,
they have not established a likelihood of success.
1. Suitability of First Amendment Framework
The threshold question to which the Court refers is one that the parties never adequately
develop and on which it harbors doubts — specifically, whether Plaintiffs’ claim is properly
analyzed under the First Amendment at all. The gravamen of their challenge is that the District
has enforced the Ordinance in a content- and viewpoint-discriminatory manner, silencing
“speech it disagrees with” while “not enforcing [it] against speech it prefers.” Compl., ¶¶ 78, 86.
In a brief bid to turn Plaintiffs away at the gates, Defendant posits that this type of claim is
actually one for selective prosecution appropriately considered under the Equal Protection
Clause, rather than the First Amendment. See Def. Opp. at 19 & n.3; see also, e.g., Henderson v.
10 Kennedy, 253 F.3d 12, 17–18 (D.C. Cir. 2001) (analyzing claim as “one of selective
enforcement” under Equal Protection Clause where plaintiffs alleged that government “has not
applied its regulations equally”).
Although the District cites but a sole district-court decision when making its case, the
Court’s own review suggests that the city may be on to something. The D.C. Circuit has
explained that selective-enforcement claims are properly analyzed under the Equal Protection
Clause, not the First Amendment, even if a plaintiff alleges that the selective enforcement
occurred because the government sought to prevent the exercise of her free-speech rights.
Sanjour v. EPA, 56 F.3d 85, 92 n.9 (D.C. Cir. 1995). Any such motivation, while no doubt
relevant to the analysis, “does not transform an equal protection ‘selective enforcement’ claim
into a First Amendment ‘as-applied’ challenge.” Id. (“The critical inquiry in such cases is thus
not whether legislation is constitutional ‘as applied’ to a particular set of facts, but rather whether
the government may constitutionally ‘apply’ the same rule to some individuals but not to others
similarly situated.”). Indeed, as the Ninth Circuit reasoned in circumstances similar to those
present here, a claim that a law has been enforced in a viewpoint-discriminatory manner is
“usually not categorized . . . as an ‘as-applied’ First Amendment challenge,” but rather as a
“selective enforcement equal protection claim[].” Hoye v. City of Oakland, 653 F.3d 835, 855
(9th Cir. 2011).
Other courts in this district have proceeded similarly. In United States v. Barnes, 481 F.
Supp. 3d 15 (D.D.C. 2020), for instance, several defendants charged with violating a statute
criminalizing expressive behavior on the Supreme Court plaza argued that it was unconstitutional
as applied to their conduct. Id. at 21. Although they contended that the government’s selective
application of the statute belied assertions of its viewpoint neutrality, the court remarked that this
11 tack was “[m]ore akin to a claim that [they] are the victims of impermissible selective
prosecution,” and that “[v]iewpoint-discriminatory enforcement practices do not transform
otherwise viewpoint-neutral laws.” Id. at 24. Similarly, in BEG Investments, LLC v. Alberti, 85
F. Supp. 3d 13 (D.D.C. 2015), a business argued that the government had exercised its liquor-
license enforcement discretion in content-discriminatory fashion, thus burdening its ability to
play certain kinds of music and infringing its First Amendment rights. Id. at 35. Although the
business did not classify its claim as one of selective enforcement, the court nonetheless
considered it under the Equal Protection rubric. Id. at 35–36, 37–38.
Plaintiffs decline to acknowledge this caselaw or even the District’s contention that their
allegations of a discriminatory enforcement pattern are more properly considered under an equal-
protection framework. The most they do is briefly insist, in a different section of their Reply,
that they have not brought a selective-enforcement claim. See ECF No. 17 (Pl. Reply) at 16.
Their own submissions, however, counsel otherwise; both their Complaint and briefing suggest
that the thrust of their First Amendment claim is that the District has selectively enforced the
Defacement Ordinance against them based on the content and/or viewpoint of their speech. See
Compl., ¶ 78 (“The District’s enforcement of the Defacement Ordinance to censor the message
of Plaintiffs is impermissibly content and viewpoint based. The application of the Defacement
Ordinance to Plaintiffs therefore unconstitutionally discriminates against Plaintiffs’ speech based
on its content and Plaintiffs’ viewpoint.”); id., ¶ 86 (“The District has a policy and practice of
enforcing the Defacement Ordinance against speech it disagrees with and not enforcing against
speech it prefers.”); Pl. Reply at 3 (“Here, the District applied the Defacement Ordinance in a
content and viewpoint discriminatory manner when it allowed speech it approves but enforced
the Ordinance against [Plaintiffs’] speech.”); id. at 6 (arguing that “the District is forbidden from
12 engaging in discriminatory enforcement of the Defacement Ordinance”). Plaintiffs’ own
materials thus intimate that their true claim is one protesting the District’s selective enforcement
of the Ordinance more properly analyzed under the Equal Protection Clause.
The Court nonetheless sees ample reason to refrain from terminating the First
Amendment analysis before it even gets started. Notwithstanding its previously mentioned
guidance, the D.C. Circuit does not appear to have conclusively weighed in on which doctrinal
framework governs claims of the precise sort raised here. Other circuits, meanwhile, have
expressly entertained First Amendment as-applied challenges based on the government’s alleged
selective or discriminatory enforcement of a statute. See, e.g., Brown v. City of Pittsburgh, 586
F.3d 263, 292–93 (3d Cir. 2009); McGuire v. Reilly, 386 F.3d 45, 61–62 (1st Cir. 2004). In
addition, as will soon become clear, the doctrinal differences between an equal-protection and
First Amendment as-applied approach are at times “semantic rather than substantive,” Hoye, 653
F.3d at 855, and the parties here principally ground their arguments in free-speech caselaw. The
Court will therefore “assum[e]” that the First Amendment supports an as-applied challenge to a
neutral law where a plaintiff alleges discriminatory enforcement based on content and/or
viewpoint. Barnes, 481 F. Supp. 3d at 24; see also Def. Opp. at 19. Such assumption does not
change the outcome here, however, for as the Court will explain, Plaintiffs are not likely to
succeed in their quest to establish the requisite content or viewpoint discrimination at any rate.
(It will later conclude that Plaintiffs’ separate equal-protection claim also fails. See infra at 32–
35.)
2. Merits
With that protracted prelude in the books, the Court turns to resolving Plaintiffs’ claim,
taking them at their word and treating it as a proper as-applied challenge under the First
13 Amendment. See Compl., ¶ 87; Pl. Reply at 3. In so doing, the Court draws substantial
guidance from the D.C. Circuit’s decision in Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011),
which concerned a set of circumstances similar in many respects to those presented here. In
Mahoney, a group of individuals sought permission to hold an anti-abortion demonstration that
involved chalking a public street in front of the White House. Id. at 1114. While granting them
approval to conduct their assembly, the D.C. police denied their request to chalk the street and
eventually stopped one person from doing so, invoking the very same Defacement Ordinance at
issue here. Id. at 1115 (citing D.C. Code § 22–3312.01). Unhappy with that outcome, the
protesters brought suit against the city, mounting, inter alia, a First Amendment challenge to the
constitutionality of the Ordinance as applied to their efforts to chalk the street. Id. On appeal,
the Court of Appeals unanimously affirmed the district court’s conclusion that application of the
Ordinance to the plaintiffs’ desired activity — i.e., chalking the public street — did not violate
their First Amendment rights. Id. at 1119; see also id. at 1122 (Kavanaugh, J., concurring) (“No
one has a First Amendment right to deface government property.”).
Mahoney thus provides the framework for the Court’s analysis of the distinct as-applied
challenge to the Ordinance that Plaintiffs bring here. As in that case, the Court will proceed in
three broad steps: “first, determining whether the First Amendment protects the speech at issue,
then identifying the nature of the forum, and finally assessing whether the District’s justifications
for restricting [Plaintiffs’] speech ‘satisfy the requisite standard.’” Id. at 1116 (quoting Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985)). As will soon become
evident, however, this precedent does not get the Court all the way home, for Plaintiffs’
argument here carries a different thrust. Instead of simply claiming a general right to paint or
14 chalk a public street, a position foreclosed by Mahoney, they contend that such right flows in
these particular circumstances from the city’s permitting others to paint their own messages.
The first two steps can be resolved in short order, and the parties do not belabor them.
First, although the Defacement Ordinance does not regulate speech, it indisputably criminalizes
certain forms of conduct that are “clearly expressive,” such as “painting, drawing, or writing.”
Id. at 1116 (citing D.C. Code § 22–3312.01). Neither party disputes that Plaintiffs’ desired
activity — the creation of a message via painting — qualifies as an expressive act that implicates
the First Amendment.
The second step follows nearly as readily. For the uninitiated reader, “the extent of
scrutiny given to a regulation of speech — in effect, how [a court] examine[s] the directness with
which it promotes the government’s goals and the degree to which it burdens speech — depends
on whether the regulation applies in a public or nonpublic forum.” Boardley v. U.S. Dep’t of
Interior, 615 F.3d 508, 514 (D.C. Cir. 2010). The former “are those places which by long
tradition or by government fiat have been devoted to assembly and debate.” Cornelius, 473 U.S.
at 802 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).
The latter, by contrast, consist of “[p]ublic property which is not by tradition or designation a
forum for public communication.” Boardley, 615 F.3d at 514 (alteration in original) (quoting
Perry, 460 U.S. at 46).
“[P]ublic places historically associated with the free exercise of expressive activities,
such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United
States v. Grace, 461 U.S. 171, 177 (1983) (internal quotation marks and citations omitted); see
also Perry, 460 U.S. at 45 (explaining that streets — which “have immemorially been held in
trust for the use of the public” and “have been used for purposes of assembly, communicating
15 thoughts between citizens, and discussing public questions” — are “quintessential” example of
public forums) (citation omitted). As the District does not seriously argue otherwise, the Court
will treat the street on which Plaintiffs sought to paint their desired message as a public forum.
See Mahoney, 642 F.3d at 1117 (reaching same result).
This determination does not hand Plaintiffs a victory, though, since regulation of speech
in a public forum is still permitted. As for whether the District’s justifications for its restriction
here pass constitutional muster, the Court turns to the critical third step of the analysis. In a
fitting — or, perhaps more precisely, painful — development, this third step yields yet another
three-part inquiry. Specifically, the government may impose “time, place, and manner”
restrictions on speech in a public forum so long as such restrictions: 1) “are justified without
reference to the content of the regulated speech”; 2) “are narrowly tailored to serve a significant
governmental interest”; and 3) “leave open ample alternative channels for communication of the
information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty.
for Creative Non-Violence, 468 U.S. 288, 293 (1984)); see also Mahoney, 642 F.3d at 1117. As
is so often the case, this test is more easily recited than applied. The present occasion is no
exception, as the parties vigorously debate all three prongs. Although Mahoney once again
lights the Court’s path as it resolves the various disputes, Plaintiffs come armed with several
complicating wrenches to the analysis — particularly on the first prong, to which the Court now
looks.
a. Content and Viewpoint Neutrality
In Mahoney, the D.C. Circuit held that the Defacement Ordinance “is indisputably
content neutral,” as it bans expressive conduct “without reference to the message the speaker
wishes to convey.” 642 F.3d at 1118. In other words, the restriction at issue — application of
16 the Ordinance to prevent individuals from chalking or painting a public street — was “justified
without reference to the content of the regulated speech,” thereby easily satisfying the first prong
of the analysis. Ward, 491 U.S. at 791 (quoting Cmty. for Creative Non-Violence, 468 U.S. at
293).
Plaintiffs do not quarrel with this binding holding, at least in the abstract. Instead,
perhaps in recognition of its force, they inject a new argument into the fold that they claim makes
the instant case a far cry from Mahoney — to wit, that the Ordinance is unconstitutional as
applied to them because the District has enforced it in a content- and viewpoint-discriminatory
manner. In other words, the city permits people to chalk messages relating to, e.g., Black Lives
Matter because its leaders endorse such positions, but it prohibits the expression of anti-abortion
slogans because they are inconsistent with officials’ views. See Pl. Reply at 2 (attempting to
distinguish Mahoney as “premised on the fact that Defendant enforced the Defacement
Ordinance in a content and viewpoint neutral manner”); id. at 8 (arguing that District’s
application of Ordinance “is not a regulation of time, place, or manner,” but rather “an
impermissible regulation of content and viewpoint”). As this is the issue on which the parties
principally butt heads, it is also the one to which the Court will devote the most attention.
As a preliminary aside, the Court notes that Plaintiffs largely use the terms “content” and
“viewpoint” discrimination interchangeably, never distinguishing between the two. See, e.g., id.
at 3–4 (arguing that “the District applied the Defacement Ordinance in a content and viewpoint
discriminatory manner” and that “[u]neven application based on the content and views of the
murals, graffiti, and assorted street art is the hallmark of content discrimination”). That is fairly
unsurprising, as the distinction between content and viewpoint discrimination is often “not a
precise one.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 831 (1995);
17 see also id. at 829 (deeming viewpoint discrimination “an egregious form of content
discrimination”). To be sure, the two doctrines are analytically distinct: while content
discrimination “occurs when the government chooses the subjects that may be discussed,”
viewpoint discrimination “occurs when the government prohibits speech by particular speakers,
thereby suppressing a particular view about a subject.” Giebel v. Sylvester, 244 F.3d 1182, 1188
(9th Cir. 2001) (cleaned up); see also Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (Kennedy, J.,
concurring in part and concurring in the judgment) (“[T]he test for viewpoint discrimination is
whether — within the relevant subject category — the government has singled out a subset of
messages for disfavor based on the views expressed.”); Reed v. Town of Gilbert, 576 U.S. 155,
168–69 (2015) (similar). In this case, though, the differences are largely academic, as both
forms of discrimination are proscribed in public forums, and Plaintiffs seem to argue that the
District’s enforcement of the Ordinance was based on impermissible considerations of content
(e.g., abortion-related messages) as well as viewpoint (e.g., anti-abortion messages). See
Rosenberger, 515 U.S. at 828–29; Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009).
The Court, moreover, need not excessively probe, for Plaintiffs are unlikely to succeed on their
claim however it is framed.
Assuming, once again, that allegations of selective or discriminatory enforcement of a
particular law based on content or viewpoint fall within the scope of an as-applied challenge
under the First Amendment, the Court turns to setting out the legal standard for considering
them. In order to prevail, Plaintiffs must establish “a pattern of unlawful favoritism,” Thomas v.
Chicago Park Dist., 534 U.S. 316, 325 (2002), by showing that they were “prevented from
speaking while someone espousing another viewpoint was permitted to do so.” McCullen v.
Coakley, 573 U.S. 464, 485 n.4 (2014); see also Phelps-Roper v. Ricketts, 867 F.3d 883, 897
18 (8th Cir. 2017); McGuire, 386 F.3d at 64. When premised on various discrete “incidents of
enforcement” (or non-enforcement), moreover, that pattern must “evinc[e] a governmental policy
or custom of intentional discrimination on the basis of viewpoint or content.” Brown, 586 F.3d
at 294; see also McGuire, 386 F.3d at 63. It thus follows, as one court in this district has
explained, that simply “[p]ointing to a handful of instances of allegedly inconsistent enforcement
is not enough to justify declaring [a] statute unconstitutional as applied to conduct the parties do
not dispute falls under its purview.” Barnes, 481 F. Supp. 3d at 25. For in such circumstances,
there is neither a “pattern” of enforcement activity based on content or viewpoint, nor a showing
of government “intent[]” underlying the disparate application. Brown, 586 F.3d at 294.
Plaintiffs have established neither of these necessary elements in the present case.
Although their Complaint purports to identify a “policy and practice” of the District’s
discriminatory enforcement of the Defacement Ordinance, see Compl., ¶ 86, the evidence — all
of which dates from the summer 2020 protests downtown — amounts to nothing of the sort. The
Court will examine Plaintiffs’ identified examples seriatim. With regard to each, they assert that
the District declined to enforce the Ordinance against certain street painting and graffiti on
account of its “approv[ing]” of the subject matter and viewpoint at issue. See Pl. Reply at 3.
(Although the Court could, alternatively, conduct the below analysis outside the instant time,
place, and manner framework under the separate label of an as-applied challenge premised upon
selective enforcement, it elects to do so here in light of the parties’ briefing in this action, as well
as the Mahoney district court’s similar treatment of allegations that the District had enforced the
Ordinance in viewpoint-discriminatory fashion. See Mahoney v. District of Columbia, 662 F.
Supp. 2d 74, 88–89 (D.D.C. 2009), aff’d sub nom. Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir.
2011).)
19 Start with the “Black Lives Matter” street mural created by the D.C. government. The
Court can easily brush this example aside, for Plaintiffs concede that the display is government
speech. See Pl. Reply at 8. It is well established that the First Amendment “restricts government
regulation of private speech; it does not regulate government speech.” Summum, 555 U.S. at
467; see also Matal, 137 S. Ct. at 1757 (explaining that government need not maintain viewpoint
neutrality when speaking); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.
200, 207 (2015) (same with regard to content). The mural, moreover, cannot be an example of
the city’s not enforcing the Defacement Ordinance because there was no defacement, as the
design was painted by District employees with the District’s permission. It thus has no bearing
on Plaintiffs’ claim.
They next point to scattered graffiti art on scaffolding outside the Chamber of Commerce,
as well as similar designs on the adjacent public street, all of which protesters created allegedly
free of consequence. See Compl., ¶¶ 43, 48; Pl. Mot. at 6–8; Pl. Reply at 4. While this set of
examples actually gets off the ground, it does not advance the argument that the District has
actively declined to enforce the Ordinance against speech the city assertedly favors. Plaintiffs
offer precious little about the precise circumstances in which protesters created the designs at
issue and any role law enforcement might have played in enabling such activity. It does not
follow from the mere fact that select individuals managed to mark up this property with words
and images supporting their cause, that the District refrained from enforcing the Ordinance
“because of” its favoring the subjects discussed and messages espoused. Brown, 586 F.3d at 293
(emphasis removed). It is noteworthy, moreover, that many of the drawings to which Plaintiffs
point appear to have come after the Chamber explicitly consented to their presence on its own
20 private property. See Def. Opp. at 21; see also D.C. Code § 22–3312.01 (making it unlawful to
mark private property “without the consent of the owner”).
Even assuming, however, that MPD or other officials were on the scene, observed
individuals applying graffiti to public (as opposed to private) property, and declined to intervene
— facts Plaintiffs neither allege nor establish — it hardly seems likely that the content or
viewpoint of the messages at issue drove their restraint. It seems far more plausible, rather, that
law enforcement opted against enforcing the Ordinance in light of the foreseeable risks of
intervention in the moment — e.g., inflaming what may well have already been a tense, fervent,
and chaotic protest scene. “Law enforcement are permitted to ‘exercise enforcement authority’
with some degree of discretion based on ‘unique circumstances,’” and the exercise of such
discretion does not inevitably constitute “evidence of viewpoint discrimination.” Barnes, 481 F.
Supp. 3d at 24–25 (quoting Hodge v. Talkin, 799 F.3d 1145, 1162 (D.C. Cir. 2015)). At least at
present, Plaintiffs have not offered any information supporting a conclusion to the contrary.
The Court, finally, turns to the “Defund the Police” mural, which happens to be the only
one of Plaintiffs’ examples that holds any real heft. As a reminder, private protesters painted this
smaller image adjacent to the city’s “Black Lives Matter” mural shortly after the latter was
created in June 2020. See Pl. Mot. at 4–5. They did so not as part of a permitted event, and the
District had no warning of the protesters’ plans to paint. See Rivera Decl., ¶ 6. The city
removed the “Defund the Police” mural approximately two months after its creation. See Pl.
Mot. at 5.
The Court begins by registering its doubts surrounding Defendant’s attempt to deem this
design government speech and thereby lump it in with the “Black Lives Matter” mural. See Def.
Opp. at 20. Although the District correctly notes that government selection of artwork to display
21 on public property is a context in which courts have applied the government-speech doctrine, in
all of its cited authority, the government selected or approved the art in question ex ante. Those
choices, in turn, commenced the public display. See, e.g., Summum, 555 U.S. at 472–73
(holding that city’s decision to select certain monuments from among pool of submissions for
ultimate display in public park constituted government speech). Here, by contrast, private parties
painted the “Defund the Police” mural on public property independent of any prior government
knowledge, choice, or approval, only to have it remain in place until the District finally elected
to remove it. See Def. Opp. at 6.
The distinction matters. “If private speech could be passed off as government speech by
simply affixing a government seal of approval, government could silence or muffle the
expression of disfavored viewpoints.” Matal, 137 S. Ct. at 1758. This is because the
government would simply say that it endorsed any speech it agreed with but did not endorse any
offering the opposing view. It could then punish the latter without being accused of viewpoint
discrimination. This case, accordingly, represents a fine example of the “great caution” courts
must take “before extending” government-speech precedents in order to avoid the potential for
“dangerous misuse.” Id. While D.C. Mayor Bowser remarked upon the artwork’s creation that
it was “not a part of the [city’s ‘Black Lives Matter’] mural,” Pl. Reply at 10 (citation omitted),
the District now appears to have effectively reversed course, mounting a belated bid to take
ownership of the message and insulate it from First Amendment scrutiny via the government-
speech doctrine. In the absence of more affirmative and contemporaneous pronouncements or
actions from the District than currently present in the record, as well as additional argument as to
public perception of the design at issue, the Court is loath to sanction a post hoc litigating
22 position that, if replicated and extended, might provide government a public-forum playbook for
censoring disfavored and preserving preferred messages.
The Court, at any rate, need not resolve this question at the present juncture. For even
assuming that the government-speech doctrine does not apply, the record leaves the Court
unconvinced that any initial non-enforcement of the Defacement Ordinance against the “Defund
the Police” mural, when considered alongside its subsequent enforcement against Plaintiffs,
constitutes evidence of content or viewpoint discrimination. On the contrary, given distinct
differences between the circumstances surrounding the mural’s creation and the incident
involving Plaintiffs nearly two months later, it seems far more likely that the District’s
contrasting response turned on factors other than the content or viewpoint of the speech at issue.
Consider the District’s advance knowledge of the relevant activities. It is undisputed that
MPD was not aware of plans to create the “Defund the Police” mural ahead of time, and the
assembly at which the painting occurred was not a permitted event with a clearly defined scope.
See Rivera Decl., ¶ 6; Def. Opp. at 20. Not so when it came to Plaintiffs’ gathering on August 1,
2020. SFLA sought approval for the assembly nearly two weeks in advance. See ECF No. 1-1
(Assembly Application) at ECF p. 2. As part of that submission, it requested permission to paint
the words “Black Pre-Born Lives Matter” on the public street holding the protest. See Rivera
Decl., ¶ 7. Although MPD approved the assembly, it expressly denied the request to paint or
mark the street. Id., ¶ 8; see also Assembly Plan Approval at ECF p. 2 (“Marking or painting the
street is not permitted.”). While the “Defund the Police” painting thus may well have caught ill-
prepared officials by surprise at an unregistered event, their forbidding Plaintiffs from acting
similarly is readily explained by the well-in-advance nature of their explicit request for
permission to violate the law.
23 Further differences unrelated to the content and viewpoint of the messages at issue
emerge upon considering the particular circumstances of the two events. As with the
aforementioned graffiti, the parties offer little detail regarding the actual creation of the “Defund
the Police” mural; Plaintiffs never even allege the bare minimum of police observing the painting
and declining to act. Even assuming they had provided evidence to that effect, however, it seems
reasonable to conclude (once again) that the decision not to enforce the Ordinance was a
legitimate exercise of law-enforcement discretion driven not by the message being painted, but
rather by public-safety imperatives in unique circumstances. See Barnes, 481 F. Supp. 3d at 24–
25. Thousands upon thousands of impassioned Americans poured into the tight streets in front of
the White House in early June, many of whom came to protest law enforcement of the very type
that would have been tasked with curtailing the painting. While enforcing the Ordinance may
have led to a cleaner street, it all too easily could have transformed a then-peaceful gathering into
something far less sedate, with considerable risk to the safety of both civilians and dramatically
outnumbered law-enforcement personnel.
Now consider the wholly dissimilar setting at Plaintiffs’ own assembly. To do so, fast
forward nearly two months, shift the clock from the cover of night to 7:30 in the morning, and
move roughly two miles northeast. Toss out a once-in-a-generation protest packing the streets in
the heart of our city and replace it with a far less chaotic gathering outside a Planned Parenthood
for which at most 49 people were expected to show. See Assembly Application at ECF p. 2.
Add in the 32 MPD officers who were present pursuant to standard operating procedures for
permitted events. See Mejia Decl., ¶ 4. And now — in this comparably tranquil scene where a
reinforced police unit had advance notice of a small number of protesters’ desire to paint and
chalk the street — consider MPD’s decision to enforce the Ordinance and rebuff the protesters’
24 attempts to defy it. It is difficult to conclude, and Plaintiffs offer essentially no evidence
suggesting, that the content or viewpoint of the speech at issue on June 6 and August 1 — as
opposed to the starkly differing contextual and circumstantial factors entirely unrelated to
content and viewpoint — account for the disparate enforcement responses. Disparate impact
alone, of course, is not enough to render a speech restriction content- or viewpoint-based. Ward,
491 U.S. at 791; Pahls v. Thomas, 718 F.3d 1210, 1235–36 (10th Cir. 2013); cf. White House
Vigil for ERA Comm. v. Clark, 746 F.2d 1518, 1527 (D.C. Cir. 1984) (“The government has
offered cogent explanations for the handful of instances in which the regulations were applied
unevenly; we conclude that those aberrations were the product of happenstance and unavoidable
circumstances rather than of improper motives.”).
This brings the Court all the way back to Mahoney, which — in yet another parallel to
this case — itself featured allegations of content and viewpoint discrimination surrounding the
District’s enforcement of the Defacement Ordinance. Specifically, the plaintiffs pointed to the
city’s history of allowing other chalking events to go forward, Ordinance notwithstanding, while
clamping down on their own bid to do the same. The district court, however, rejected this
discriminatory-enforcement argument where the evidence reflected only “dissimilar incidents” of
past chalking “on public property in other parts of the District.” Mahoney, 662 F. Supp. 2d at
88. The D.C. Circuit did not disturb this conclusion, even when the plaintiffs pressed the issue
on appeal. See Brief for Appellants at 30–31, 35, Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir.
2011) (No. 09-7131), 2010 WL 3564779; Mahoney, 642 F.3d at 1115. While not controlling,
therefore, the district-court’s decision in Mahoney at the very least reinforces the Court’s
determination here.
25 To be sure, the District left the protesters’ “Defund the Police” mural in place for roughly
two months (even as it restored the adjacent D.C. flag in its own mural) before finally removing
it in order to complete pre-planned roadwork. See Def. Opp. at 6. Even assuming, though, that
this inertia constitutes evidence of the District’s declining to enforce the Defacement Ordinance
— an uncertain proposition, given that the statute prohibits the disfiguring and marking of
private and public property, but does not require the government to clean anything up, see D.C.
Code § 22–3312.01 — Plaintiffs remain obligated to establish a “pattern” of non-enforcement
activity “evincing a governmental policy or custom of intentional discrimination on the basis of
viewpoint or content.” Brown, 586 F.3d at 294; see also Thomas, 534 U.S. at 325. This isolated
occurrence would not clear the bar. Even “a handful of instances of allegedly inconsistent
enforcement,” after all, “is not enough to justify declaring the statute unconstitutional as applied
to conduct the parties do not dispute falls under its purview.” Barnes, 481 F. Supp. 3d at 25; cf.
Hodge, 799 F.3d at 1162 (explaining that police’s selective non-enforcement “in certain
situations” of statute restricting expressive activity on grounds of Supreme Court “did not
somehow transform the plaza” from nonpublic forum to “public forum for all time”).
The outcome here might have been different upon a record containing additional and
more compelling evidence of the District’s enforcing (or not) the Ordinance when dealing with
disfavored (or favored) speech in materially similar circumstances. The Court will not
hypothesize as to the form such evidence could take at this juncture. Suffice it to say that not
nearly enough is present here to enable the Court to reach Plaintiffs’ desired conclusion.
On the current record, accordingly, the Court finds that the District’s application of the
Ordinance to Plaintiffs was “justified without reference to the content [or viewpoint] of the
regulated speech.” Ward, 491 U.S. at 791 (quoting Cmty. for Creative Non-Violence, 468 U.S.
26 at 293).
b. Government Interest and Tailoring
Resolution of the second prong of the time, place, and manner test, thankfully, requires
far less exertion than the first. As a reminder, application of the Ordinance to Plaintiffs’ desired
expression must be “narrowly tailored to serve a significant governmental interest.” Ward, 491
U.S. at 791 (quoting Cmty. for Creative Non-Violence, 468 U.S. at 293). The District readily
checks this box.
Starting with the governmental interest at hand, it is well established that “the
government has a substantial interest in the preservation and enhancement of the human
environment” and that “aesthetics are a proper focus of governmental regulation.” White House
Vigil, 746 F.2d at 1528. Courts have repeatedly held that “municipalities have a weighty,
essentially esthetic interest in proscribing intrusive and unpleasant formats for expression.”
Members of City Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 806 (1984);
see also, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507–08 (1981) (plurality
opinion) (determining that city had substantial aesthetic interest in avoiding visual clutter).
Reasoning from these principles, the D.C. Circuit in Mahoney determined that the District had a
significant governmental interest in controlling the aesthetic appearance of city streets. See 642
F.3d at 1118. That conclusion controls here.
Fishing for a way around this holding, Plaintiffs gesture once more at the District’s
alleged non-enforcement of the Ordinance throughout summer 2020. By declining to apply the
statute on the aforementioned occasions, they argue, Defendant forfeited the ability to claim a
significant governmental interest in the aesthetic appearance of public property. See Pl. Mot. at
16–17. As described above, however, the isolated examples to which Plaintiffs point occurred
27 not because of the District’s lack of commitment to enforcing the Ordinance, but rather because
of unique underlying circumstances (to wit, a chaotic and unprecedented protest). At any rate,
Plaintiffs’ latest tack is once again foreclosed by Mahoney. That case, as a reminder, involved
litigants who asserted that the District had not previously enforced the Ordinance against a
number of comparable chalking displays on city streets. See 642 F.3d at 1115. The mere
existence of such prior approvals and instances of non-enforcement did not prevent the Court of
Appeals (and the district court) from holding as it did.
Rather than grapple with the force of Mahoney, Plaintiffs invoke Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), a free-exercise case finding inadequate
evidence of a “compelling” (as opposed to significant) governmental interest where the
ordinances at issue “restrict[ed] only conduct protected by the First Amendment and fail[ed] to
enact feasible measures to restrict other conduct producing substantial harm or alleged harm of
the same sort.” Id. at 546–47. Lukumi, however, does Plaintiffs no favors. The Defacement
Ordinance does not “restrict[] only conduct protected by the First Amendment,” id., but rather
proscribes “the conduct of defacing, defiling, or disfiguring property by various means — some
of which are clearly expressive,” but others of which “are primarily destructive.” Mahoney, 642
F.3d at 1116; see also id. (“[E]nforcement of the Defacement Statute will not always implicate
the First Amendment.”). In any event, even assuming that the case’s strict-scrutiny principles
apply to claims asserting discriminatory application of a facially neutral statute (Plaintiffs never
so demonstrate), and even assuming that the District has enforced the Ordinance in the alleged
selective manner (as previously explained, it has not), any such (non)-enforcement has not left
“appreciable damage to [the city’s] supposedly vital interest unprohibited.” Lukumi, 508 U.S. at
547 (citation omitted). On the contrary, the District “enforced the Ordinance 22 times in the last
28 six months of 2020 alone, including 6 times in connection with the Black Lives Matter protest,”
ECF No. 18 (Def. Reply) at 12, and it continues to enlist public assistance in identifying suspects
for Ordinance violations. See Rivera Decl., ¶ 5.
At bottom, on Plaintiffs’ view, several asserted instances in which a municipality declines
to enforce its prohibition on street marking — regardless of the particular circumstances giving
rise to such non-enforcement — would seemingly divest it of the ability to ever claim an interest
in regulating visual clutter. In this case, that would mean that anyone could chalk any street in
any part of the District with any message at any time. That simply cannot be right.
With a substantial governmental aesthetic interest thus established, the Court next asks
whether the restriction of Plaintiffs’ desired expression is “narrowly tailored to serve” that
interest. Ward, 491 U.S. at 791 (quoting Cmty. for Creative Non-Violence, 468 U.S. at 293).
Mahoney again counsels in the affirmative. As the Court of Appeals explained, “It is the
tangible medium — chalking — that creates the very problem the Defacement Statute seeks to
remedy.” 642 F.3d at 1118; see also Taxpayers for Vincent, 466 U.S. at 810 (“[T]he substantive
evil — visual blight — is not merely a possible by-product of the activity, but is created by the
medium of expression itself.”). Application of the Ordinance against Plaintiffs thus “responds
precisely to the substantive problem which legitimately concerns” the District, “curtail[ing] no
more speech than is necessary to accomplish its purpose.” Taxpayers for Vincent, 466 U.S. at
810; see also Mahoney, 642 F.3d at 1119 (“The government can proscribe even temporary
blight.”).
Plaintiffs rejoin that Defendant flunks the tailoring requirement because its non-
enforcement of the Ordinance “against some speech demonstrate[s] that street murals, sidewalk
messages, and a governmental interest in clean and open streets can co-exist.” Pl. Mot. at 18.
29 Putting aside the fact that this line seems more of a backdoor bid to undermine the government’s
(already established) aesthetic interest, it likewise misses the point when it comes to tailoring.
The reasonableness of a time, place, and manner restriction “should not be measured by the
disorder that would result from granting an exemption solely to” a single litigant, or even a few.
Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 652 (1981); see also Cmty.
for Creative Non-Violence, 468 U.S. at 296–97. Courts, rather, “must look to what would
happen if every individual to which a restriction applies were freed of its limitations.” Mahoney
v. U.S. Marshals Serv., 454 F. Supp. 2d 21, 35 (D.D.C. 2006). If any number of groups could
affix their desired messages and imagery to city streets on a whim, the consequences would be
self-evident: clutter, “widespread disorder,” and, to say the least, a “much larger threat” to the
District’s ability to “further[] its important concern” in managing the city’s aesthetics. Heffron,
452 U.S. at 653–54. Plaintiffs, unsurprisingly, never grapple with that world when asserting that
their proposed designs could “co-exist” with open streets. See Pl. Mot. at 18. Application of the
Ordinance in this case, accordingly, is narrowly tailored to serve the substantial governmental
interest at hand.
c. Alternative Channels of Communication
The Court finally arrives at the third prong of the inquiry: whether the restriction
“leave[s] open ample alternative channels for communication of the information.” Ward, 491
U.S. at 791 (quoting Cmty. for Creative Non-Violence, 468 U.S. at 293). As it plainly does, the
Court need not spend much time here.
The District’s enforcement of the Defacement Ordinance has not prevented Plaintiffs
from expressing their desired message at their desired time and place. Consider their assembly
on August 1, 2020, which the District expressly approved. See Assembly Plan Approval at ECF
30 p. 2. Although MPD barred them from inscribing “Black Pre-Born Lives Matter” on the street
and sidewalk, the protesters carried signs reciting the very same message and chanted it in unison
over the course of the morning. See Def. Opp. at 9; Assembly Plan Approval at ECF p. 2
(permitting protesters “to possess bullhorns, music stand[s] and signs”). The protest continued
even after police arrested the two attendees who defied warnings to cease their chalking, one of
whom was clearly not chilled or intimidated, since he returned later and spoke through a bullhorn
while standing next to a “Black Pre-Born Lives Matter” poster. See Def. Opp. at 9. It is thus
clear that “ample alternative channels of communication existed” for Plaintiffs’ message,
Mahoney, 642 F.3d at 1119, and there is no indication that demonstrators will be prevented from
engaging in any of these forms of expression (save the painting or chalking) at their forthcoming
March 27 event.
All Plaintiffs muster in response is the flat assertion that they retain no alternative
channel “because Defendant has completely banned [them] from engaging in their desired
protected speech, which is painting the words ‘Black Pre-Born Lives Matter’ on the public
street.” Pl. Reply at 13. The D.C. Circuit, however, has rejected this precise argument,
instructing that “the scope of [a plaintiff’s] request cannot define the available ‘channels of
communication.’” Mahoney, 642 F.3d at 1119 (explaining, e.g., that “[i]f [plaintiff] exclusively
asked to post signs on light posts, he could not do so under Taxpayers for Vincent, 466 U.S. at
810”). Because Plaintiffs remain “free to engage in a rich variety of expressive activities” and
retain “a multitude of possibilities for meaningful protest,” White House Vigil, 746 F.2d at 1528,
it matters not that the District curbed but a single form of such potential expression. See
Mahoney, 642 F.3d at 1119 (alternative channels of communication available where plaintiff
“was free to announce any ‘verbal’ message he chose” and “depict visual messages on signs,
31 banners, and leaflets”); Heffron, 452 U.S. at 655 (alternative channels of communication
available where plaintiffs could continue to assemble and “orally propagate their views”);
ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 958 (D.C. Cir. 1995).
***
“[T]he First Amendment does not guarantee the right to communicate one’s views at all
times and places or in any manner that may be desired.” Heffron, 452 U.S. at 647. Because the
District’s application of the Defacement Ordinance to Plaintiffs was and is a valid restriction on
speech, they are not likely to succeed on the merits of their free-speech claim.
B. Equal Protection
Plaintiffs’ second cause of action takes them from the First Amendment over to the
Fifth’s and Fourteenth’s guarantee of equal protection. Although the relevant constitutional
provision is different, their argument is largely the same: that the Ordinance is unconstitutional
as applied to them because the District failed to enforce it against “similarly situated individuals”
espousing “speech it prefers.” Compl., ¶¶ 100–02. As might be expected, this stratagem of
Amendment-hopping does not improve their odds: their equal-protection challenge is unlikely to
succeed for essentially the same reasons as their free-speech claim.
Under the Fourteenth Amendment’s Equal Protection Clause, as applicable to the District
through the Fifth Amendment, similarly situated persons must be treated alike. Women
Prisoners of D.C. Dep’t of Corr. v. District of Columbia, 93 F.3d 910, 924 (D.C. Cir. 1996).
“Dissimilar treatment of dissimilarly situated persons,” on the other hand, “does not violate equal
protection.” Id. (cleaned up) (citation omitted). “The threshold inquiry in evaluating an equal
protection claim is, therefore, to determine whether a person is similarly situated to those persons
who allegedly received favorable treatment.” Id. (internal quotation marks and citation omitted).
32 Plaintiffs’ equal-protection argument essentially reduces to the following: they are
“similarly situated” to the many other “activists, protestors, and street artists who painted
messages on the streets of D.C.” during summer 2020 because they too are “private citizens who
desire to communicate their chosen message” by inscribing it on public streets. See Pl. Reply at
14–15. When the District declined to enforce the Ordinance against certain protesters while
nonetheless applying it against them simply because of the viewpoint of the speech at issue,
Plaintiffs contend, the city treated similarly situated entities differently in violation of the equal-
protection guarantee. See Pl. Mot. at 20–21.
“If this argument sounds familiar, it should.” Wagner v. FEC, 793 F.3d 1, 32 (D.C. Cir.
2015). It is essentially the same theory, albeit then “clothed in the garb of a First Amendment
claim,” id., that the Court rejected when it found stark contextual and circumstantial differences
between Plaintiffs’ curtailed painting bid and the other incidents of non-enforcement to which
they point. See supra at 20–26. The Court need not revisit all those distinctions here, which
collectively make it difficult to conclude that Plaintiffs have carried their burden to “show[] that
they are ‘similarly situated’” to the other unidentified protesters against whom the Ordinance
was not enforced. Henderson, 253 F.3d at 18. In other words, the mere fact that Plaintiffs
sought to mark public property with “nearly identical words” as those latter individuals, see Pl.
Mot. at 21, is not enough. See Mahoney, 662 F. Supp. 2d at 97 (determining that plaintiffs were
not similarly situated to other groups permitted to chalk public streets).
Even if Plaintiffs could establish dissimilar treatment of similarly situated entities,
however, their claim would still fail. That is because litigants bringing equal-protection
challenges based on the government’s allegedly selective or discriminatory enforcement of its
laws — as Plaintiffs do here — must also show that the relevant “differential treatment was
33 based on impermissible considerations such as . . . intent to inhibit or punish the exercise of
constitutional rights.” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 40 (2d Cir. 2018); see also
Branch Ministries v. Rossotti, 211 F.3d 137, 144 (D.C. Cir. 2000) (requiring plaintiff to show
that enforcement was “improperly motivated”). As the Court explained at length when resolving
their free-speech claim, Plaintiffs have not demonstrated that enforcement of the Ordinance “was
improperly motivated by the [District’s] desire to discriminate against the viewpoint” or content
of their speech. BEG Investments, 85 F. Supp. 3d at 38; see also Hoye, 653 F.3d at 854–55
(explaining that differences between First Amendment as-applied challenge based on selective
enforcement and selective-enforcement equal-protection claim can be “semantic rather than
substantive” because plaintiff must always show that government’s “content-discriminatory
enforcement of an ordinance is the result of an intentional policy or practice”). Numerous
circumstances unrelated to the content of the speech at issue distinguish the city’s action against
Plaintiffs from the other instances of non-enforcement they identify. “Even if there [were] lapses
in enforcement,” moreover, “there [is] no indication that these were attributable to impermissible
discrimination.” Henderson, 253 F.3d at 18 (rejecting equal-protection claim on this basis).
Simply swapping Amendments does nothing to change the underlying analysis. Hoye, 653 F.3d
at 855.
All Plaintiffs say in response — other than recycling free-speech arguments the Court has
already discarded — is that they have not pled a selective-enforcement claim, such that the above
discriminatory-intent inquiry is misplaced. See Pl. Reply at 16. As previously discussed,
though, regardless of the technical fashion in which they caption their pleadings, their own
description of their equal-protection challenge betrays its true nature. See, e.g., Compl., ¶ 94
(“By applying the Defacement Ordinance to Plaintiffs, but not to other individuals or
34 organizations similarly situated, the Defendants have impermissibly subjected Plaintiffs to
unequal treatment from similarly situated individuals and organizations.”); id., ¶ 98 (alleging
“discriminatory application of the Defacement Ordinance to Plaintiffs”); id., ¶ 100 (“The District
has a policy and practice of enforcing the Defacement Ordinance against speech it disagrees with
and not enforcing against speech it prefers.”). As if further confirmation were necessary, the
D.C. Circuit has explained — in an equal-protection case similar to this one — that a challenge
to the government’s enforcement of its regulations against the plaintiffs but not other allegedly
similarly situated entities was, “in essence, one of selective enforcement” requiring a showing of
“impermissible discrimination.” Henderson, 253 F.3d at 17–18. Just as the plaintiffs in
Henderson asserted the government “ha[d] not applied its regulations equally,” id. at 17, so too
here do Plaintiffs maintain that the District has unevenly enforced the Ordinance “against some
messages, but not other similar messages” based on the type of speech at issue. See Compl.,
¶ 101.
Plaintiffs, accordingly, are unlikely to succeed on the merits of their equal-protection
claim.
C. Freedom of Association
Returning to the First Amendment, Plaintiffs next assert that the District’s enforcement of
the Ordinance to prevent their defacing public property violated their “right to associate on the
basis of their shared beliefs.” Compl., ¶ 110. In other words, as their briefing clarifies, by
“prevent[ing] [them] from gathering to temporarily paint their message” on city streets, the
District infringed their “expressive association” rights. See Pl. Reply at 16–17. Plaintiffs,
however, have not explained how such rights are implicated at all in this case.
The Supreme Court “has recognized a right to associate for the purpose of engaging in
35 those activities protected by the First Amendment.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618
(1984). Such activities, it seems naturally understood, “could not be vigorously protected from
interference by the State unless a correlative freedom to engage in group effort toward those ends
were not also guaranteed.” Id. at 622. Although government action may “infringe upon this
freedom” in a range of factual settings, the Court has specifically found expressive-associational
rights implicated by policies that, among other things, “impose penalties or withhold benefits
from individuals because of their membership in a disfavored group,” “require disclosure of the
fact of membership in a group seeking anonymity,” or “interfere with the internal organization or
affairs of [a] group.” Id. at 622–23 (citations omitted).
Mere recital of these categories suggests the $64,000 question: how does Plaintiffs’ claim
fit within them? Their cursory briefing never explains. It is no doubt true that “[e]ffective
advocacy of both public and private points of view, particularly controversial ones, is undeniably
enhanced by group association.” Pl. Reply at 16 (quoting NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 460 (1958)). It is left entirely unsaid, however, how the District’s enforcement of
the Ordinance at all interfered with Plaintiffs’ ability to engage in such “group association” for
the purpose of expressing their views, id. — even though that is the precise activity their claimed
right protects.
None of the three cases Plaintiffs cite (without offering any real accompanying
discussion) involves circumstances remotely comparable to those present here. Two feature state
requirements found to burden individuals’ ability to join or remain in groups of their choosing.
In Kusper v. Pontikes, 414 U.S. 51 (1973), for instance, a statute effectively “‘lock[ed]’” voters
into their “pre-existing party affiliation[s] for a substantial period of time,” thus “substantially
restrict[ing]” their “freedom to change” affiliations and accordingly burdening their ability to
36 “associate” with their desired group. Id. at 57–58. Similarly, in NAACP, the Supreme Court
determined that a state regulation compelling disclosure of a private organization’s membership
list “may induce members to withdraw from the [organization] and dissuade others from joining
it because of fear of exposure of their beliefs shown through their associations.” 357 U.S. at
462–63. Plaintiffs, of course, do not identify such risks here; they never argue that enforcement
of the Ordinance discourages or restricts group membership, as necessary to implicate the
“freedom to engage in association for the advancement of beliefs.” Id. at 460. The third case,
Jaycees, is even further afield. There, the Court considered a statute requiring an all-male
organization to admit women, a mandate that implicated freedom of association by “intru[ding]
into the internal structure or affairs of [the] association” and “forc[ing] [it] to accept members it
does not desire,” potentially altering its very nature. See 468 U.S. at 623. The District’s
preventing Plaintiffs from painting a public street has no such bearing on internal organizational
affairs.
At bottom, Plaintiffs are not likely to succeed on the merits of their claim for the basic
reason that they never coherently link the protested enforcement to their expressive-association
rights. Even at the most basic level, it remains unclear how such rights are implicated by a
restriction on speech that in no fashion “impairs their ability to associate with each other or any
other group.” Def. Reply at 19–20. It seems difficult to maintain, as Plaintiffs would, that where
individual speech is permissibly barred, group speech cannot be without violating association
rights. Indeed, as Defendant points out, Plaintiffs’ conception of expressive association would
seemingly prevent government “from regulating any expressive conduct by any group of
individuals unless it satisfied strict scrutiny.” Id. at 21; see Pl. Mot. at 21–22; Pl. Reply at 17.
That, of course, is not the law.
37 D. RFRA
Shifting gears, the three individual Plaintiffs next pin their hopes on RFRA. Specifically,
they maintain that the “District’s enforcement of the Defacement Ordinance against [them]
substantially burdens their religious exercise” as manifested in their pro-life advocacy and is “not
narrowly tailored to any compelling government interest.” Compl., ¶¶ 115–16, 119. The Court
does not reach the latter analysis, however, for it finds that Plaintiffs have flunked their initial
obligation to establish a substantial burden on their religious exercise.
RFRA provides that the “Government shall not substantially burden a person’s exercise
of religion” unless “it demonstrates that application of the burden . . . (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb–1; see also id. § 2000bb–2(2)
(clarifying that RFRA applies to District of Columbia). A person who brings a challenge under
RFRA bears the initial burden of proving that (1) the Government’s policy or action implicates
her religious exercise, (2) the relevant religious exercise is grounded in a sincerely held religious
belief, and (3) the policy or action substantially burdens that exercise. See Holt v. Hobbs, 574
U.S. 352, 360–61 (2015) (discussing burdens in Religious Land Use and Institutionalized
Persons Act action); id. at 357–58 (citation omitted) (explaining RLUIPA is governed by same
standard as set forth in RFRA).
The D.C. Circuit has considered RFRA claims similar to that presented here on several
occasions. Indeed, Mahoney rejected an essentially identical one. Even though the plaintiffs
there insisted that their abortion-related chalking efforts were “religiously motivated,” the Court
of Appeals concluded that the District’s enforcement of the Ordinance did not substantially
burden their religious exercise. See 642 F.3d at 1120. As the unanimous panel explained, such
38 enforcement neither “force[d] [them] to engage in conduct that their religion forbids” nor
“prevent[ed] them from engaging in conduct their religion requires,” chiefly because it
“prohibit[ed] only ‘one of a multitude of means’ of conveying” their chosen religious message.
Id. at 1121 (quoting Henderson, 253 F.3d at 17). The Circuit recently reaffirmed this reasoning
in a case in which a public-transit authority refused to accept a religiously oriented advertisement
for display in its advertising space. See Archdiocese of Wash. v. Wash. Metro. Area Transit
Auth., 897 F.3d 314, 320 (D.C. Cir. 2018). Although the plaintiff organization argued that
advertising offered a “unique and powerful format” for its religiously motivated faith-spreading
campaign, the Court of Appeals explained that it never “alleged that its religion requires
displaying advertisements on” WMATA property (or even advertising at all), and that it “has
many other ways to pursue its evangelization efforts.” Id. at 333. “Sincere religious beliefs,” the
Circuit concluded, “are not impermissibly burdened by restrictions on evangelizing . . . where a
‘multitude of means’ remains for the same evangelization.” Id. (pointing to newspapers, social
media, and city bus shelters); see also Henderson, 253 F.3d at 16–17 (similar).
These principles squarely foreclose Plaintiffs’ RFRA claim. By their own account, their
“pro-life advocacy is an exercise of their . . . religious belief that all human beings, including
unborn children, are made in the image of God, and that all such life is worthy of protection from
conception until natural death.” Pl. Mot. at 24–25; see also, e.g., Whittington Decl., ¶ 10 (“I
believe that abortion is a grave sin. My pro-life convictions directly stem from these deeply held
religious beliefs.”). The Court does not question the sincerity of these beliefs. Their mere
“existence,” however, and “even the sincere desire to act in accordance with [them],” is “not
enough to sustain a [RFRA] claim.” Archdiocese of Wash. v. Wash. Metro. Area Transit Auth.,
281 F. Supp. 3d 88, 114 (D.D.C. 2017), aff’d, 897 F.3d 314, 320 (D.C. Cir. 2018); see also
39 Mahoney, 642 F.3d at 1120–21 (holding that fact that pro-life advocacy is “religiously
motivated” is insufficient to establish substantial burden on religious exercise). Here, Plaintiffs
never allege that their sincerely held religious beliefs include engaging in pro-life advocacy
“through the specific medium” of painting or chalking a public street. Mahoney, 662 F. Supp. 2d
at 96–97; see also Archdiocese of Wash., 897 F.3d at 333. The District’s enforcement of the
Ordinance notwithstanding, they retain a “multitude of means” — such as the very bullhorns,
signs, and chants they deployed at their August 2020 protest — to engage in the “same
evangelization,” Archdiocese of Wash., 897 F.3d at 333, thereby communicating their desired
message and engaging in “pro-life advocacy” in accordance with their religious beliefs. See
Whittington Decl., ¶ 10; see also Mahoney, 642 F.3d at 1121 (noting that although plaintiffs
could not chalk, they could still spread religious message through picketing); Henderson, 253
F.3d at 16–17 (similar).
At no point do Plaintiffs discuss any of these cases. Nor do they acknowledge the
binding principles for which they stand, despite Defendant’s recounting them at length. See Def.
Opp. at 35–37. Instead, they simply maintain that they have suffered a substantial burden
because application of the Ordinance places “substantial pressure on [them] to modify [their]
behavior and to violate [their] beliefs.” Pl. Reply at 17–18 (quoting Thomas v. Review Bd., 450
U.S. 707, 718 (1981)). Although Plaintiffs correctly state the law, it renders them no assistance
here. For, as the Court has already demonstrated, they are under no pressure whatsoever to
“violate [their] beliefs.” Id. The District’s enforcement, after all, “only require[s] that they
modify their nonreligious choice of expressive medium” for their pro-life advocacy. Mahoney,
662 F. Supp. 2d at 97. The very caselaw they ignore confirms that such imposition is entirely
proper under RFRA.
40 Because Plaintiffs have not established that the District has or will substantially burden
their religious exercise, their RFRA claim finds no likelihood of success.
E. Free Exercise
Reaching the end of the road at last, the Court turns to Plaintiffs’ fifth and final claim —
namely, that the District has violated the Free Exercise Clause of the First Amendment. The
thrust of their challenge is that the city has enforced the Ordinance against religiously oriented
activity but has refrained from doing so against secular analogues. See Pl. Mot. at 27. Once
again, however, largely for reasons the reader has already seen, this closing effort meets the same
fate as its precursors’.
The D.C. Circuit has instructed that not all constraints on religiously motivated conduct
give rise to a First Amendment claim. Instead, the Free Exercise Clause is implicated only
“when a law or regulation imposes a substantial, as opposed to inconsequential, burden on the
litigant’s religious practice.” Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002); see
also Branch Ministries, 211 F.3d at 142 (“To sustain its claim under either the [Free Exercise
Clause] or [RFRA], [a plaintiff] must first establish that its free exercise right has been
substantially burdened.”); but see Brandon v. Kinter, 938 F.3d 21, 32 & n.7 (2d Cir. 2019)
(applying substantial-burden requirement but questioning whether it survives Employment
Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990)). A component of this
threshold showing requires that the challenged rule “burden a central tenet or important practice
of the litigant’s religion.” Levitan, 281 F.3d at 1320. The Court questions whether Plaintiffs can
surmount this initial hurdle, as they never allege that the specific activity affected by the
District’s enforcement of the Ordinance — i.e., their painting a public street, as distinct from
other means of engaging in their religiously motivated pro-life advocacy — comprises a “central
41 tenet” or “important practice” of their religion. Id.; see supra at 40; Archdiocese of Wash., 281
F. Supp. 3d at 113 (rejecting free-exercise claim in part because no substantial burden on
religious belief or practice where plaintiff could spread religious message in numerous other
fashions).
In any event, even assuming Plaintiffs could get their free-exercise claim through the
doorway, see Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C. Cir. 2008) (so assuming), they
still could not establish a likelihood of success on its merits. The right of free exercise protected
by the First Amendment “does not relieve an individual of the obligation to comply with a valid
and neutral law of general applicability on the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes).” Smith, 494 U.S. at 879 (internal quotation
marks and citation omitted). Plaintiffs do not gainsay that the Ordinance is both neutral and
generally applicable on its face. Instead, in what appears to be yet another effort to repurpose
their failed selective-enforcement claim, they maintain that the statute flunks both requirements
as the District has applied it to them. See Compl., ¶¶ 129–31.
Plaintiffs first argue that the Ordinance has “not been applied in a generally applicable
manner” because the District enforced it against them while declining to do so against analogous
secular messages. See Pl. Mot. at 27. It is true that government “cannot in a selective manner
impose burdens only on conduct motivated by religious belief” or “fail to prohibit nonreligious
conduct that endangers [the government’s] interests in a similar or greater degree than” the
prohibited religious conduct does. Lukumi, 508 U.S. at 543. As the Court has already
explained, however, the District here has done nothing of the sort. Assuming these broad
principles govern free-exercise challenges based on alleged discriminatory enforcement of a
facially valid law — a proposition Plaintiffs never establish — the present record does not
42 support the conclusion that the city has selectively applied the Ordinance against “religiously
motivated defacement” while letting similarly situated “nonreligious defacement . . . go
unchallenged.” Mahoney, 662 F. Supp. 2d at 95 (rejecting free-exercise claim). Plaintiffs must
show more than a mere handful of instances of non-enforcement in circumstances dissimilar to
their own in order to establish that the city has “target[ed] religious . . . speech to an extreme
degree.” Am. Family Ass’n, Inc. v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004). It is clear,
moreover, that “religion alone” does not “bear the burden of the [Ordinance],” Lukumi, 508 U.S.
at 544; on the contrary, the District has enforced the facially neutral law dozens of times
throughout 2020, including against secular messages. See Def. Reply at 12, 17 n.4; Rivera Decl.,
¶¶ 4–5; see also Am. Family Ass’n, 365 F.3d at 1171 (rejecting free-exercise challenge where
“[i]t is just not true . . . that the burdens of the [challenged regulatory scheme] fall on religious
organizations ‘but almost no others’”) (quoting Lukumi, 508 U.S. at 536).
It readily follows that the District’s application of the Ordinance against Plaintiffs was
neutral. A law flunks this independent (albeit “interrelated”) requirement if its “object . . . is to
infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at
531, 533. Contrary to Plaintiffs’ conclusory contention, see Pl. Mot. at 27, the record contains
no evidence suggesting that the District enforced the Ordinance against them “because [their
conduct was] undertaken for religious reasons.” Lukumi, 508 U.S. at 532; see also Archdiocese
of Wash., 897 F.3d at 332. Similarly, the Court has already rejected on multiple occasions
(including just now) the factual predicate behind their claim that “[t]he Ordinance is not enforced
in a neutral way because the District applies it to . . . [Plaintiffs’] message, but not similar
messages that do not have a pro-life viewpoint.” Pl. Reply at 19. This recycled assertion merits
43 no further attention here. Plaintiffs, accordingly, are not likely to succeed on the merits of their
free-exercise claim.
As Plaintiffs have not established a likelihood of success on any of their claims, the Court
need not address the remaining preliminary-injunction factors. See Ark. Dairy Co-op, 573 F.3d
at 832; Adams v. District of Columbia, 285 F. Supp. 3d 381, 397 (D.D.C. 2018). It cannot bring
this Opinion to a close, however, without briefly remarking on the possible incompatibility
between their requested injunctive relief and the public interest (one of the four preliminary-
injunction criteria).
Were the Court to enjoin the District from enforcing the Ordinance against Plaintiffs’
street-marking campaign, the city would necessarily have one more street mural on its hands.
Perhaps that alone would not be excessively invasive, notwithstanding the large size intended for
the design. See Whittington Decl., ¶ 9 (“We intend for our ‘Black Pre-Born Lives Matter’ mural
to be as large and as prominent as the ‘Black Lives Matter’ and ‘Defund the Police’ murals.”).
The Court, however, cannot entertain Plaintiffs’ request in a vacuum, for granting them their
desired relief would presumably be just the beginning. No doubt there are countless more
hopeful sketchers — and would-be litigants — waiting in the wings with their own ideas for
street art, in their own location, espousing their own desired messages.
Consider a world — as the Court must — in which every individual subject to the
Ordinance were suddenly “freed of its limitations,” and the District was “compelled to grant each
and every request” to paint a given design on city streets. Mahoney, 662 F. Supp. 2d at 91
(citation omitted). Roads would be closed and traffic diverted to accommodate new creations.
Citizens would be confronted with “an influx of clutter,” Summum, 555 U.S. at 479 (citation
44 omitted), substantially changing the city’s appearance. Formerly well-ordered streets and
sidewalks would become anything but.
No one wants a city awash in paint. Given the Court’s merits decision today, it need not
consider how such public interest might inform any hypothetical exercise of its equitable
discretion. For now, at least, it simply intends to sound warning chimes for both parties: one
alerting Plaintiffs to the uphill battle they face should they desire to continue pursuing their
presently requested relief, and another reminding the District of the distinctly unpleasant results
that a successfully established pattern of content-discriminatory Ordinance enforcement might
yield.
IV. Conclusion
For the aforementioned reasons, the Court will deny Plaintiffs’ Motion for a Preliminary
Injunction. A separate Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: March 26, 2021
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