Two pro-life activists were arrested for writing "Black Pre-Born Lives Matter" in chalk on a public sidewalk outside a Planned Parenthood clinic in Washington, D.C. Blocks away, thousands of Black Lives Matter demonstrators had chalked slogans across city streets for weeks without a single arrest. A federal appeals court now says that disparity looks like the government picking favorites in a public debate.
The D.C. Circuit Court of Appeals ruled 3-0 that the District of Columbia plausibly engaged in viewpoint-based discrimination when it enforced its defacement ordinance against pro-life protesters while ignoring identical conduct by BLM supporters during the summer of 2020. The unanimous panel reversed U.S. District Judge James Boasberg's dismissal of the lawsuit, finding that the pro-life groups had stated a viable First Amendment claim that Boasberg should not have thrown out before a jury could weigh the evidence.
The case raises a pointed question: when a trial judge tosses a civil rights claim at the earliest stage, twice, only to be overruled by every appellate judge who reviews it, does that reflect an honest legal disagreement or something more troubling? Pro-life legal advocates say Boasberg usurped the jury's role, and the appellate record gives their argument real teeth.
On August 1, 2020, two members of the Frederick Douglass Foundation and allies from Students for Life of America went to a D.C. sidewalk outside a Planned Parenthood facility. They used washable chalk to write "Black Pre-Born Lives Matter." Police arrived and arrested them under the District's defacement ordinance, as Just the News reported.
The timing was impossible to ignore. That same summer, BLM protesters had chalked messages across D.C. streets and sidewalks on a massive scale. City officials not only declined to arrest anyone for those markings but had actively facilitated a giant "Black Lives Matter" mural painted on a city street near the White House. The contrast was stark: one viewpoint got a mural, the other got handcuffs.
The pro-life groups, represented by the Alliance Defending Freedom, filed suit alleging that D.C. officials had selectively enforced the defacement law based on the political viewpoint of the speaker. Their complaint laid out the double standard in plain terms.
The plaintiffs' lawsuit put it bluntly:
"While such laws are intended to prohibit criminal activity, they may not be used as a tool to silence disfavored speech. But this is precisely what the District and the Defendants have done."
The case landed before Judge James Boasberg, an Obama appointee who sits on the U.S. District Court for the District of Columbia. In 2021, Boasberg dismissed the lawsuit, ruling that the pro-life groups had not adequately alleged that they were treated differently from similarly situated BLM protesters, the Washington Free Beacon reported.
That dismissal drew immediate criticism from conservative legal circles. The factual parallels between the two groups seemed obvious on their face: both used chalk, both wrote on public surfaces, and only one side faced arrest. Boasberg's conclusion that the plaintiffs had not plausibly alleged similar treatment struck many observers as a stretch.
Boasberg is no stranger to controversy. He now serves as chief judge of the Foreign Intelligence Surveillance Court and has drawn conservative scrutiny for rulings that critics say reflect a pattern of hostility toward right-leaning litigants. That pattern is not unique to one judge. A liberal law professor recently refused to teach an Obama-appointed judge's order sanctioning Trump lawyers, calling the reasoning unsound, a sign that concerns about judicial overreach cut across ideological lines when the reasoning is weak enough.
The three-judge appellate panel did not hold back. Writing for the court, Judge Neomi Rao held that the pro-life groups had cleared the bar for their selective enforcement claim.
"The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance."
The panel emphasized a bedrock First Amendment principle: the government cannot play favorites among speakers, whether through legislation or through enforcement choices. As National Review detailed, the court held that "The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government's motive." That language matters because it forecloses a common government defense: the claim that officials did not intend to discriminate and were simply exercising routine enforcement discretion.
Judge Rao's opinion went further. She wrote that "the government may not enforce the laws in a manner that picks winners and losers in public debates," as Breitbart reported. The ruling sent the case back to the trial court for further proceedings.
What happened next made the case even more unusual. On remand, Boasberg again dismissed the suit. And the D.C. Circuit again reversed him. The appellate court's willingness to overturn the same trial judge on the same core issue, twice, is a notable signal. It suggests the appeals panel believed Boasberg was not simply making a close call but was applying the wrong legal standard or misreading the factual record in a way that denied the plaintiffs their day before a jury.
Pro-life legal advocates argue that Boasberg effectively decided factual disputes that belong to a jury. At the motion-to-dismiss stage, a judge is supposed to accept the plaintiff's well-pleaded facts as true and ask only whether those facts, if proven, would state a viable legal claim. Dismissing a case at that stage means concluding that even if everything the plaintiff says is accurate, there is no legal remedy. The D.C. Circuit's two reversals suggest Boasberg was weighing evidence and resolving factual questions that should have gone to trial.
The judicial accountability question extends well beyond this case. A Texas judge was recently sanctioned publicly for releasing convicted sex offenders from probation early, a reminder that when judges exercise discretion in ways that defy common sense, formal accountability mechanisms do exist.
The Alliance Defending Freedom, which represents the pro-life plaintiffs, framed the case as a test of whether the government can use neutral-sounding laws as weapons against disfavored viewpoints. ADF Senior Counsel Erin Hawley, as the Washington Examiner noted, stated the principle simply: "Washington officials can't censor messages they disagree with. The right to free speech is for everyone."
That principle resonates far beyond the pro-life context. Selective enforcement of facially neutral laws is one of the most dangerous tools in the government's censorship toolkit precisely because it is hard to detect and easy to deny. A defacement ordinance that applies to everyone on paper but targets only one viewpoint in practice is not a neutral law. It is a speech code with a disguise.
The concern is not hypothetical. A Tennessee man spent 37 days in jail over Charlie Kirk memes before winning an $835,000 settlement, a case that illustrated how law enforcement can weaponize vague statutes against political speech.
Conservative legal observers have long argued that certain Obama-appointed judges bring ideological commitments to the bench that shape their rulings in predictable ways. Boasberg's handling of this case fits a pattern that critics say extends across multiple policy areas.
The argument is not that every Obama appointee rules in bad faith. It is that when the same judge dismisses the same First Amendment claim twice, and a unanimous appellate panel reverses him both times, the pattern demands scrutiny. Judicial independence does not mean judicial immunity from criticism, and a track record of reversals on the same legal question in the same case is the kind of data point that matters.
Obama-appointed judges have also drawn fire for blocking Trump administration permitting rules, part of a broader conservative concern that the federal bench in Washington functions as a check on conservative governance in ways it never does against progressive priorities.
With the case revived a second time, the pro-life plaintiffs will finally get the chance to develop their factual record through discovery and, potentially, present their evidence to a jury. The key questions at trial will center on whether D.C. officials made a conscious decision to enforce the defacement ordinance against pro-life chalkers while ignoring BLM chalkers, and whether that decision was driven by the viewpoint of the speech rather than any legitimate law enforcement rationale.
D.C. officials will likely argue that the circumstances differed in ways that justified different enforcement responses. The sheer scale of BLM protests, they may contend, made individual arrests impractical. The plaintiffs will counter that impracticality is not the same as legality, and that the city's decision to facilitate a BLM street mural while arresting pro-life chalk writers undermines any claim of viewpoint neutrality.
Investigators and litigants will need to determine whether internal communications among D.C. officials reveal any directive, formal or informal, to treat pro-life protesters differently. Discovery could produce emails, text messages, or policy memoranda that either support or undermine the discrimination claim. No such documents have been made public yet.
The core complaint from the pro-life groups is not just that D.C. discriminated against them. It is that Judge Boasberg took a factual question away from the citizens who are supposed to decide it. The right to a jury trial on disputed facts is not a procedural technicality. It is a constitutional guarantee rooted in the Seventh Amendment, and it exists precisely because the Founders did not trust any single government official, including a judge, to be the final arbiter of contested facts.
When a judge dismisses a plausible civil rights claim before discovery, before depositions, and before a jury hears a single witness, the effect is to immunize the government from accountability. The D.C. Circuit said, twice, that Boasberg got it wrong. The case will now proceed, and a jury will get the chance to weigh the evidence that Boasberg decided they did not need to see.
Equal enforcement of the law is not a conservative value or a liberal value. It is the baseline promise of constitutional government. When that promise breaks down, and when the judges tasked with enforcing it look the other way, the entire system loses credibility it cannot afford to spend.
