FREE SPEECH VICTORY: Circuit Court Finds Evidence of Viewpoint Discrimination for Excluding SFLA’s Pro-Life Perspective in Washington D.C. Case

Caroline Wharton - 15 Aug 2023

With pro-abortion attacks on free speech rising across the country, a new First Amendment victory for Students for Life of America (SFLA) is well worth celebrating as this well-overdue win makes it clear that viewpoint discrimination cannot be tolerated. A Circuit Court found evidence that the District of Columbia (D.C.) had censored pro-life free speech when officials arrested SFLA activists and others for chalking ‘Black Preborn Lives Matter’ in 2020, allowing our case to continue. Here’s background on this case and what you need to know about the decision:

In Case You Forgot…Here Are the Case Details

In 2020, after hordes of “Black Lives Matter” protestors repeatedly filled the D.C. streets without reproof and the phrase ‘Black Lives Matter’ was emblazoned in permanent paint on the road, SFLA and the Frederick Douglass Foundation attempted to use temporary paint to display the message ‘Black Preborn Lives Matter.’

Warner DePriest arrested for attempting to chalk in D.C.

Prior to the event, SFLA sent both a permit request and a letter to the mayor, explaining that this would be a peaceful event and received verbal confirmation from a police officer that temporary paint for this purpose was permissible. However, upon arriving for the event, pro-life activists were met with police force and told they were not allowed to paint. When this occurred, activists switched gears to using chalk on the public sidewalk (something children in the city do every day), and two were arrested for beginning to chalk the pro-life message ‘Black Preborn Lives Matter,’ including SFLA former-student and now-employee Warner DePriest.

For more details on this event, click HERE to read a SFLA blog. You can also read a Newsweek op-ed by SFLA President Kristan Hawkins and pro-life activist Toni McFadden entitled “Black Preborn Lives Matter — And Americans Must Be Allowed to Say So.”

SFLA message in Baltimore

After this case was brought to a district court and dismissed, SFLA and the Douglass Foundation appealed to the United States Court of Appeals for the District of Columbia — and we won the appeal in a unanimous 3 – 0 vote.  The Court held that D.C. had “discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance” and remanded for further proceedings.

After his arrest and brief jail time due to the incident, DePriest stated he was “thrilled that the rights of citizens to speak out in favor of the preborn was affirmed by the appeals court.”

SFLA President Kristan Hawkins also lauded the victory as “encouraging” for the Pro-Life Generation, saying: “Viewpoint discrimination is un-American, and as the case proceeds, we look forward to learning more about how D.C. officials picked winners and losers in their enforcement. Free speech rights you’re afraid to use don’t really exist, and we will keep fighting for the rights of our students to stand up for the preborn and their mothers.”

ADF Senior Counsel Erin Hawley, the vice president of the ADF Center for Life and Regulatory Practice who argued before the court on behalf of the pro-life organizations, concurred, stating:

“Washington officials can’t censor messages they disagree with. The right to free speech is for everyone, and we’re pleased the D.C. Circuit agreed that the Frederick Douglass Foundation and Students for Life should be able to exercise their constitutionally protected freedom to peacefully share their views the same as anyone else. Every American deserves for their voice to be heard as they engage in important cultural and political issues of the day.”

The Best Lines from the Decision

The D.C. Circuit Court had some zingers within their opinion on the importance of free speech; here are some of our favorites:

  • “It is antithetical to a free society for the government to give “one side of a debatable public question an advantage in expressing its views to the people.”
  • “It is fundamental to our free speech rights that the government cannot pick and choose between speakers, not when regulating and not when enforcing the laws.”
  • “The government may not enforce the laws in a manner that picks winners and losers in public debates. It would undermine the First Amendment’s protections for free speech if the government could enact a content-neutral law and then discriminate against disfavored viewpoints under the cover of prosecutorial discretion.”
  • “The government may not play favorites in a public forum—permitting some messages and prohibiting others.”
  • “Viewpoint discrimination, whether by legislative enactment or executive action, violates the First Amendment.”

This case isn’t over yet, but pro-life free speech has won another battle in the war on First Amendment rights with the right to continue our case. It’s an occasion for celebration and a reminder for the Pro-Life Generation to never allow their voice to be muzzled.

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