- The Washington Times - Wednesday, July 1, 2020

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 First Amendment.

Judicial Watch said it wants to paint its own motto, “Because No One is Above the Law.”

“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 Street.”

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 yellow lettering.

The city has allowed that slogan to remain, which Judicial Watch says shows either support or acquiescence.

David L. Hudson Jr., a First 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. 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 D.C. 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 D.C. 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 Commandments.

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 public forum.

“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.

The group said it first asked permission on June 10, four days after the protesters added their message to 16th Street. Interim Deputy Mayor John Falcicchio responded two days later saying it would conflict with road markings. He said the 16th Street paintings were OK because those blocks of the street are closed.

Judicial Watch then asked for access to a similar closed street. Mr. Falcicchio told them to submit an application for a public space permit. Judicial Watch said those permits govern a parade or some other event, but not painting.

Indeed, when the group inquired with the city’s permitting office it says it was told there was no such road-painting permit available.

“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 protesters.

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 worship.

Both free speech and the free exercise of religion are protected by the First Amendment.

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 preferential treatment.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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