Lawyers for antiabortion groups and the District of Columbia sparred today over whether to allow protesters to draw chalk art on the pedestrian plaza facing the White House.
In oral argument before the U.S. Court of Appeals for the D.C. Circuit, the protesters’ lawyer accused the District’s police department of violating their First Amendment rights last year when police officials denied a request to chalk. The District had never before denied such a request, but no one had ever made one before.
“This is an activity that the District not only permits, but encourages and invites throughout the District,” said Carly Gammill, litigation counsel at the American Center for Law and Justice, a conservative legal group.
Gammill cited various public chalking events throughout the city, including an annual event at George Washington University for which she said the police department closes off a city street. She said the District has failed to show a compelling reason to deny the request to chalk in front of the White House, on the closed-off portion of Pennsylvania Avenue, where the activists held a demonstration in January 2009.
Last year, U.S. District Judge Ellen Segal Huvelle ruled against the protesters, denying their request for an injunction against the police and granting the District summary judgment. The protesters, including the Rev. Patrick Mahoney, director of the Christian Defense Coalition, want to move forward at least to discovery.
Carl Schifferle of the D.C. Attorney General’s Office told the appeals panel that the District has an “absolute right” to regulate activity on its property, just as a private property owner does. The ban on chalking on Pennsylvania Avenue, he said, applies regardless of who asks for permission and it maintains the “unique aesthetic interests in this particular location.”
Members of the three-judge panel asked skeptical questions of both sides.
Judge Brett Kavanaugh noted that the police also ban littering and the posting of fliers, policies that the protesters don’t object to. “The aesthetic interest in preventing littering would seem to be similar to the aesthetic interest in preventing chalking,” he told Gammill.
Gammill responded that the District’s policy regarding chalk is more discretionary — it allows chalking in some places, not in others, and it’s not clear how it decides, she said.
Judge Karen LeCraft Henderson asked Schifferle whether the police department could prohibit protesters from writing on the street in “invisible ink,” which would not disturb the area’s aesthetics. Schifferle reiterated that the District’s rights are absolute when it comes to defacing public property.