The US Court of Appeals for the District of Columbia Circuit on Tuesday reversed the dismissal of a lawsuit against the District of Columbia alleging that it selectively enforced its defacement ordinance against anti-abortion protesters but not Black Lives Matter (BLM) protesters in the summer of 2020. The case is an appeal from the US District Court for the District of Columbia.

Circuit Judge Neomi Rao authored the opinion of the court. Rao reasoned that the plaintiffs “plausibly” alleged a selective enforcement claim against DC in violation of the First Amendment. To successfully plead this cause of action, a plaintiff must demonstrate that (1) they were similarly situated in material respects to other individuals against whom the law was not enforced and (2) the selective enforcement infringed on a constitutional right. Rao concluded that both gatherings were about matters of public concern during the summer of 2020.

Additionally, Rao concluded that the selective enforcement plausibly infringed on the plaintiffs’ First Amendment rights because DC may have unequally enforced the ordinance based on viewpoint. Rao noted that selective enforcement of a neutral and facially constitutional law may violate the First Amendment if the government’s prosecutorial choices turn on the content or viewpoint of the speech. The court reversed the dismissal on First Amendment grounds but upheld the dismissal on the plaintiffs’ Fifth Amendment claims.

The district court initially dismissed the lawsuit because it concluded that the plaintiffs did not plead a plausible cause of action. Thus, it dismissed the case for failure to state a claim via Federal Rule of Civil Procedure 12(b)(6). The district court found the much larger number of BLM protesters and possible safety concerns to be differentiating factors and stopped short of determining whether the plaintiffs were similarly situated. The court also determined that the plaintiffs did not successfully prove that the different enforcement was motivated by the content of their speech. Now that the case has been remanded, the district court will now consider the parties’ evidence that DC violated the First Amendment.

The Frederick Douglass Foundation sued DC after anti-abortion protesters were arrested for writing on a sidewalk in chalk, “Black Pre-Born Lives Matter.” The foundation argues that DC selectively enforced its defacement ordinance because it did not enforce the ordinance during the BLM protests in DC in 2020, creating a categorical exemption.