Equality under the law is a cardinal principle of the United States’ constitutional order. This principle extends to laws regulating speech. Specifically, the government does not get to single out a particular viewpoint and treat it with favor or disfavor based on the speaker’s views. When municipalities, states, or other governmental actors violate this principle, they can be subject to potentially significant liability, payment for attorneys’ fees, and other forms of relief (including, possibly, a finding that its laws operate unconstitutionally). In many cases, a law that does not itself distinguish between viewpoints will not give rise to a potential claim. However, as a recent case from the D.C. Circuit Court of Appeals highlights, governmental actors must still take care to enforce even facially neutral laws in an evenhanded manner to avoid such consequences.   

2020 was a year filled with demonstrations across the country related to alleged excessive police force. In Washington, D.C., there were sustained demonstrations. During these demonstrations, Washington, D.C. officials did not enforce the District’s defacement ordinance which prohibits anyone from “willfully and wantonly . . . writ[ing], mark[ing], draw[ing], or paint[ing] on public or private property, without the consent of the owner or the public official controlling the property.” At the same time, however, two pro-life advocates were arrested as part of a smaller demonstration for chalking “Black Pre-Born Lives Matter” on a public sidewalk. Later, their advocacy group was denied a permit to request to paint on the street and sidewalk. 

In Frederick Douglass Foundation, Inc., et al. v. District of Columbia, these advocates and the larger group sued for (1) an injunction against the enforcement of the defacement ordinance and (2) for damages under 42 U.S.C. § 1983 for an alleged violation of their First and Fifth Amendment rights. Notably, the plaintiffs did not allege that the defacement ordinance was unconstitutional. And, such a challenge would likely have been difficult, given that the text of the ordinance did not discriminate between viewpoints. Rather, they contended that the enforcement of this ordinance was one-sided in violation of their constitutional rights. 

Such “selective enforcement” claims pose difficulties because prosecutorial discretion is a recognized aspect of governmental power. But plaintiffs can allege a claim if they show they were singled out for enforcement from among others similarly situated. This was true in Frederick Douglass Foundation, where (1) both groups had a political message; (2) both groups sought to demonstrate on public streets and sidewalks; and (3) both groups technically violated the District’s defacement ordinance. Although the groups were similarly situated, the trial court dismissed both the Plaintiffs’ First and Fifth Amendment claims — reasoning that the Plaintiffs needed to show discriminatory intent to proceed on both claims. This issue has been the subject of debate among federal circuit courts.

In an interesting development, however, the D.C. Circuit disagreed with the trial court’s reasoning as to the First Amendment claim, holding that the plaintiffs did not need to demonstrate discriminatory intent. By allowing challenges based on innocent or even beneficial governmental objectives, Frederick Douglass Foundation may well make it easier for litigants to bring selective enforcement claims related to their free speech rights. Illustrating this, the D.C. Circuit reinstated the plaintiffs’ free speech claim but dismissed their equal protection claim for failure to allege a discriminatory intent.

Frederick Douglass Foundation holds several important lessons going forward. For those who feel a law has been enforced against them selectively, the case demonstrates the importance of framing the alleged violation in terms of a specific constitutional guarantee as opposed to the more generalized provisions of the 5th and 14th Amendments. 

For nonprofit organizations objecting to unequal treatment, it is important that they may not need to allege discriminatory intent. As such, it will likely be easier for those individuals to survive the early stages of litigation and possibly engage in discovery to determine the scope of the alleged unequal practice and whether intent did exist. As such, government entities should consider investigating and evaluating their compliance with the requirement that laws be enforced in an evenhanded manner, ensuring proper policies are established, adequate training occurs, an audit process is in place, and an opportunity exists for employees and the public to object to practices via a hotline. But, as the First Amendment applies to multiple forums, including social media, the case surrounding the scope of equal treatment analysis will continue to be a point of contention.