Washington DC police arrested two prolife activists for chalking “Black Preborn Lives Matter” on the sidewalk in front of a Planned Parenthood.

From the video, one officer said the charge was “defacing property” even though it was chalk and on a public sidewalk.

Evidently, this is not new. There’s a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.’s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test:

  1. The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew.
  2. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government’s interest in maintaining the aesthetic appeal of the area in front of the White House and didn’t restrict any speech that does not deface public property.
  3. The law must leave open ample alternatives for communication, meaning that even if you can’t express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets.

Of course, this law wasn’t applied to the BLM paint job on the street leading to the White House because the mayor was involved.