On August 1, 2020, Students for Life members Warner DePriest and Erica Caporealetti chalked the message “Black Pre-Born Lives Matter” in front of a Planned Parenthood clinic as part of a planned protest in which police officers were present.
The message was a timely one. At the time, racial protests had erupted across the country, including in Washington, D.C., where the phrase “Black Lives Matter” was scrawled on buildings, sidewalks, and streets, but the protesters were not arrested by police.
That fact did not go unnoticed by the arrested pro-lifers, who sued the city after their arrest, nor by the D.C. Circuit Court that overruled the lower court that had dismissed their lawsuit.
“The government may not enforce the laws in a manner that picks winners and losers in public debates," the appeals court wrote in its August 15 opinion. “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."
By overruling a lower court, the appeals court is allowing the lawsuit to proceed.
Caporealetti and DePriest are being represented by the Frederick Douglass Foundation with legal help from Alliance Defending Freedom.
Reacting to the appeals court ruling, DePriest tells AFN he witnessed Black Lives Matter protesters and Antifa members spray paint “all sorts” of things during their protests while the police stood by.
At the scene of the Planned Parenthood protest, however, those same verbally police officers warned the pro-lifers they would be arrested if they wrote on the public sidewalk.
“That's viewpoint discrimination straight-up,” says DePriest.
Even worse, DePriest says he has written chalk messages on that same public sidewalk many times without being handcuffed.
Elsewhere in the court opinion, the judges were not persuaded by the plaintiffs’ argument they were targeted because Mayor Muriel Bowser supports abortion, nor the argument the police targeted them for their “pro-life beliefs."
The argument that persuaded the appeals court, however, was the evidence police were following a hands-off policy for BLM protesters. “The sheer scope of non-enforcement supports the Foundation’s claim that policymakers promoted or at least allowed an exemption for a favored viewpoint,” the court wrote.
Chalk up the victory
Dean Nelson, a Family Research Council senior fellow and chair for the Frederick Douglass Foundation, appeared on Washington Watch Wednesday, discussing the court's ruling.
"The reality is cities were flooded, there was destruction that happened in cities – but when we as an organization … wanted to make a public stand for the sanctity of life by simply chalking 'black pre-born lives matter,' we were met with … a whole host of [DC] officers were there. And when we dared to simply write on the sidewalk in front of that Planned Parenthood, the mayor's deputies went to work."
Washington, DC, Mayor Muriel Bowser, an avid pro-abortion advocate, posted passionately on Twitter the following on the same day the Supreme Court announced its landmark decision returning abortion regulation to the states:
"Washington, D.C., is a proud pro-Choice city, and access to abortion is still legal here. This is about health care. This is about women's rights. This is about bodily autonomy. A majority of Americans believe in a woman's right to choose. This fight is urgent but not over."
Regardless, the federal appeals court judges saw what the pro-life students saw in 2020.
"In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim 'Black Lives Matter,'" the court wrote in its decision. "Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District's defacement ordinance, yet none of the protesters were arrested."
Nelson told Washington Watch host Jody Hice:
"This will allow us to move forward with our full case against Washington, DC, and the mayor's office, [seeking] not only justice for us and Students for Life, but for anybody who wants to stand for what they believe in and to communicate that in the public square – making sure the federal government, the state government and the city government cannot clamp down on individuals just because they disagree with the positions and the speech that we stand for."
