Just a few weeks ago the U.S. Court of Appeals for the D.C. Circuit said dancing is prohibited inside the Jefferson Memorial. Critics protested. Through dance.
Today, the appeals court turned its attention to a different form of expression—chalk art. The court unanimously said in a panel ruling (PDF) that D.C. law prohibits chalk scribbling on the street in front of the White House.
“No one has a First Amendment right to deface government property,” Judge Brett Kavanaugh declared. “No one has a First Amendment right, for example, to spray-paint the Washington Monument or smash the windows of a police car.”
Kavanaugh said the law prohibiting defacement of public and private property in a content-neutral manner provides “no serious First Amendment objection.”
Rev. Patrick Mahoney, the plaintiff in the suit in Washington federal district court, sought permission for a chalk demonstration in late 2008 to protest against abortion. City police said Mahoney, director of the Christian Defense Coalition, could show up with thousands of supporters. He was allowed to bring signs and banners. But he was prohibited from marking 1600 Pennsylvania Avenue Northwest.
Mahoney sued the city and the Metropolitan Police Department in January 2009 in U.S. District Court for the District of Columbia. He wanted an injunction to block the city from preventing him from writing with chalk on the street. A trial judge rejected the request.
Two days later, the appeals court said, Mahoney took his chalk to the street in front of the White House. Police confronted Mahoney, confiscated the chalk and told him to stop. Mahoney obliged. He was not arrested. Mahoney amended his complaint to add the officer who stopped the chalking.
Judge Janice Rogers Brown wrote the opinion for the appeals panel, which included Kavanaugh and Judge Karen LeCraft Henderson.
The appeals court said the District’s defacement statute is content neutral, banning certain activity—including cutting, chipping, writing and marking—without reference to control of the speaker's message.
Also, the court said the “special nature” of the street in front of the White House—closed to vehicular traffic but open to pedestrians—“serves to heighten esthetic concerns” of the government. “[T]he District’s interest in controlling the esthetic appearance of the street in front of the White House is substantial,” the appeals court said.
The court noted that the District's defacement statute still provided Mahoney other avenues for communication, including signs and banners.
"The District’s threatened use of the defacement statute did not curtail Mahoney’s plans," Brown wrote. "Mahoney was free to announce any “verbal” message he chose. And, Mahoney could depict visual messages on signs, banners, and leaflets. Thus, ample alternative channels of communication existed."
Lawyers for Mahoney were not immediately reached for comment this morning on the appellate court ruling. Carly Gammill of the American Center for Law and Justice argued for Mahoney in the D.C. Circuit in September.
Gammill and James Henderson Sr. of the ACLJ said in court papers that the chalk art demonstration was the only speech activity for which Mahoney sought permission. The city's restriction, then, "prohibited the demonstration in its entirety."
"[W]hatever the storied history and traditions may be that pertain to the street in dispute, Pennsylvania Avenue is nothing other than an archetypical public forum," Mahoney's attorneys said in a brief.
Mahoney's lawyers called the chalk art ban a "peculiar, targeted denial of expression." The attorneys said the District regularly "conducts contests and promotions to entice the public into the public space for the purpose of creating chalk art."