Court Rules in Favor of Pro-Life Protesters Arrested for Chalk Messages

While chalking on D.C. sidewalks and streets is illegal, the protesters say they were targeted for their beliefs.

A panel of D.C. federal judges has ruled in favor of pro-life protesters who were arrested after chalking "Black Pre-born Lives Matter" on a D.C. sidewalk in 2020. The ruling reverses a previous decision that dismissed a lawsuit from two anti-abortion groups, which argued that police violated their First Amendment rights.

"The government may not enforce the laws in a manner that picks winners and losers in public debates," wrote Judge Neomi Rao in her opinion. "It would undermine the First Amendment's protections for free speech if the government could enact a content-neutral law and then discriminate against disfavored viewpoints." 

The protesters, 22-year-old Erica Caporaletti and 29-year-old Warner DePriest, were arrested while participating in an anti-abortion protest held by Students for Life of America and the Frederick Douglass Foundation on August 1, 2020. According to The Washington Post, the protest was convened in the wake of that summer's Black Lives Matter protests and sought to highlight "the impact of abortion on Black communities." 

While writing chalk messages on public streets and sidewalks is considered vandalism in D.C., protest leaders had an earlier conversation with a police officer in which he "explained that he believed Mayor Bowser had effectively opened up the District's streets for political markings."

However, once the protest actually started, police told demonstrators that they would be arrested if they painted or chalked any messages. According to the ruling, Caporaletti and DePriest "began to chalk 'Black Pre-Born Lives Matter' on the sidewalk anyway. Despite the message being written in small, faint letters with washable chalk, the two students were arrested."

Students for Life and the Frederick Douglass Foundation filed a lawsuit in November 2020, accusing D.C. police of violating the group's First Amendment rights and Fifth Amendment right to equal protection. But their case was dismissed in 2021.

Last week, a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit reversed that decision. While the judges agreed that Caporaletti and DePriest didn't have an equal protection claim, they were allowed to move forward with their First Amendment claims.

While no one disputes that Caporaletti and DePriest violated D.C. law by chalking the sidewalk, the Court agreed that police may have engaged in illegal viewpoint discrimination by arresting the pair while ignoring individuals who openly painted and chalked anti-police and pro—Black Lives Matter messages around the city in the weeks prior.

"The District all but abandoned enforcement of the defacement ordinance during the Black Lives Matter protests, creating a de facto categorical exemption for individuals who marked 'Black Lives Matter' messages on public and private property," wrote Rao. "The government may not play favorites in a public forum—permitting some messages and prohibiting others."