2020-07-03 01:06:57 UTC
Judicial Watch went to court Wednesday demanding access to paint the streets
of Washington with its own political message after the city wrote “Black
Lives Matter” on one street and allowed protesters to paint “Defund the
Police” next to it.
The conservative group said the city has effectively turned its roadways into
a public forum, and so it must allow those with differing viewpoints than BLM
protesters to have the same access, or else it's violating the 1st Amendment.
Judicial Watch said it wants to paint its own motto, "Because No One is Above
"We have been patient. We also have been flexible. We have stated our
willingness to paint our motto at a different location if street closure is
necessary and the city is unwilling to close our chosen location," the group
told the city. "All we ask is that we be afforded the same opportunity to
paint our message on a DC street that has been afforded the painters on 16th
Neither the office of Mayor Muriel Bowser nor Attorney General Karl Racine
returned messages about the challenge.
The lawsuit is the latest battleground over what's become a nationwide
epidemic of guerrilla urban planning, with protesters tearing down statues
and adding their own slogans on public property in cities across the nation--
often outside the established legal process.
In Washington, the city government went first.
Ms. Bowser designated a section of 16th Street Northwest near the White House
as Black Lives Matter Plaza, and the city then oversaw painting "Black Lives
Matter" in safety-yellow lettering on the roadway.
A day later, protesters added their own slogan, "Defund the Police", also in
The city has allowed that slogan to remain, which Judicial Watch says shows
either support or acquiescence.
David L. Hudson Jr., a 1st Amendment fellow at the Freedom Forum Institute
and a law professor at Belmont University, said the city is probably on solid
ground with its own labeling. But allowing protesters to add their message
may cross the line.
"The city can promote its own message and declare it government speech. Thus,
the city could paint Black Lives Matter without having to allow other
messages," he said. "However if the city opens up the street to other private
groups, then there is a good argument that by policy or practice it has
created an open forum."
John Inazu, a law professor at Washington University in St. Louis, said when
it comes to streets, there's an "unstable line" between government speech,
which can discriminate against viewpoints, and a public forum, which must
allow access to all.
For example, he said, the city would be justified in permitting a Martin
Luther King parade while excluding the Ku Klux Klan.
[Huh? That's... not true. We had a whole landmark Supreme Court case over
exactly that very thing, with the Court ruling the city couldn't
refuse to issue a permit to a bunch of racists to march in streets.
National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977)
Professor Inazu isn't much of a law professor if he doesn’t know about that
So the question is whether the painted words make the street a public forum.
"The initial 'Black Lives Matter' is arguably government speech, particularly
if DC officials have formally or even unofficially designated the area 'Black
Lives Matter Plaza,'" he said. "The addition of 'Defund the Police' is a
closer call, depending on how officially DC government actors have endorsed
it as their own message. I think the additional slogan at least gives
Judicial Watch a plausible claim that the city's denial of their request
constitutes viewpoint discrimination."
But Eugene Volokh, a law professor at the University of California, Los
Angeles, pointed to a case out of Utah where a city, Pleasant Grove, had 15
monuments, 11 of them donated, including one that displayed the Ten
A religious group, the Summum wanted to post its competing "Seven Aphorisms".
The Supreme Court in 2009 ruled the city's decisions of what monuments to
display was government speech, which trumped the claim that the park was a
"I think that’s exactly the same as regard to the pavement of a street,"
Mr. Volokh told The Washington Times. "Just as a city can decide to have a
Lincoln Boulevard but not a Jefferson Davis Lane, so it can choose to accept
some street markings and refuse others," he said.
Judicial Watch, in its lawsuit, recounted its attempts to get the city to
allow its own painting. Indeed, when the group inquired with the city's
permitting office it says it was told there was no such road-painting permit
"We would gladly follow the rules if there were any. We are left with the
firm conviction that the process-- to the extent there is one-- is arbitrary
and favors only one viewpoint, that which is currently being expressed on
16th Street," Judicial Watch said.
Judicial Watch isn't the first to raise questions of cushy treatment for BLM
Late last week, a federal judge in New York called out Gov. Andrew Cuomo and
New York City Mayor Bill de Blasio for dissonance in praising that city's
protests, despite coronavirus restrictions, even as they restricted religious
[Too bad the judge didn't know about FPP. He could have added FPP to list of
suffering from dissonance on this issue.]
Both free speech and the free exercise of religion are protected by the 1st
Judge Gary L. Sharpe said the two politicians could have remained silent on
the protests, but by speaking out publicly in favor of them-- and in the case
of Mr. de Blasio, even marching with them-- amid the coronavirus pandemic, he
wrote, they "sent a clear message that mass protests are deserving of