Court says two abortion protesters in DC can proceed with freedom of speech lawsuit

Two students were arrested in August of 2020 for writing an anti-abortion message on a sidewalk. Now, a federal court ruled a lower court was wrong for dismissing their lawsuit over First Amendment rights.

Erica Caporaletti and Warner DePriest chalked “Black Pre-Born Lives Matter” outside a Planned Parenthood in Northeast D.C. when they were cuffed by on police Aug. 1, 2020.

A lawsuit was filed that fall by the Frederick Douglass Foundation on behalf of the two protesters, alleging that their free speech rights and equal protection rights were violated.

D.C.’s district court dismissed the lawsuit, concluding the foundation had failed to adequately allege discriminatory intent.

The U.S. Court of Appeals for the D.C. circuit heard arguments in late September of 2022, and while they agreed with the dismissal of the equal protection, they found that the suit had merit based on the First Amendment.

Judge Neomi Rao wrote the opinion for the court, saying “the First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others.”

She pointed in the opinion to numerous messages written by Black Lives Matter protesters that same summer that saw no enforcement.

“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,” she wrote.

Ultimately the judges ruled 3-0 that the lawsuit may proceed with the opinion in mind.

The D.C. government can now appeal the decision or take it to the Supreme Court.

Luke Lukert

Since joining WTOP Luke Lukert has held just about every job in the newsroom from producer to web writer and now he works as a full-time reporter. He is an avid fan of UGA football. Go Dawgs!

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