A federal appeals court ruled that the District of Columbia unevenly enforced its defacement ordinances against pro-life groups. According to the court, authorities treated the groups worse than Black Lives Matter activists.

According to the complaint, two pro-life activists were arrested in August of 2020 for writing “Black Pre-Born Lives Matter” on a public sidewalk in chalk. The incident with the pro-life groups followed a summer when the streets of Washington were covered in graffiti supporting Black Lives Matter.

“Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk,” the court wrote in its opinion. “The markings were ubiquitous and in open violation of the district’s defacement ordinance, yet none of the protesters were arrested.”

The court ultimately ruled that the government cannot enforce laws in a manner that picks winners and losers in a public debate. In its opinion, the court said it would undermine the First Amendment to enact a content-neutral law but discriminate against disfavored viewpoints under the cover of prosecutorial discretion.

“The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive,” the court wrote. “We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance.”

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