This article was originally published on Crafting Your Home. A human contributor also wrote and edited the post.
Two people used washable chalk to express a political message, and police arrested them. Weeks earlier, demonstrators painted and spray-painted other political messages across Washington without facing the same consequences. More than five years later, the federal judge overseeing the dispute has again prevented a jury from deciding whether the city applied its law according to political viewpoint.
For ordinary Americans, the controversy reaches beyond abortion, Black Lives Matter, or President Donald Trump. It concerns a painfully familiar suspicion that rules fall hardest on people who lack institutional approval, political influence, or the safety of a large crowd. When authorities punish one message immediately but explain away similar conduct connected to another message, equal justice begins to look less like a principle and more like a privilege.
A rule that appears to change with the political message
Most Americans understand selective treatment because they encounter it in schools, workplaces, neighborhoods, and government offices. If two employees break the same policy but only the unpopular employee gets punished, few people would call that fair. Yet Washington officials argue that major differences between the protests justified arresting the anti-abortion demonstrators while declining to arrest racial justice protesters who violated the same defacement ordinance.
The law itself was straightforward: no one could write, mark, draw, or paint on public property without permission. The troubling part was not the wording of the ordinance but its enforcement, because a neutral rule can become a political weapon when officials decide that one violation deserves handcuffs and another deserves patience. That is precisely why viewpoint discrimination remains one of the First Amendment’s clearest dangers.
The chalk protest was small, peaceful, and easy to police
Students for Life of America and the Frederick Douglass Foundation organized a demonstration outside a Planned Parenthood facility in Northeast Washington on August 1, 2020. Their permit allowed no more than 49 participants and authorized bullhorns, signs, and a music stand, but it prohibited marking or painting the street. Organizers separately asked officials for permission to display the words “Black Preborn Lives Matter” on public property.
Approximately 20 demonstrators attended, while about 30 Metropolitan Police Department officers were present, meaning the officers outnumbered the protesters. After police warned that chalking the sidewalk violated the defacement ordinance, two participants began writing the message and were arrested when they continued. Chief Judge James Boasberg’s February 2026 ruling acknowledged that the record contained no indication that prosecutors ever charged them.
Washington’s response to other protesters looked dramatically different.
The anti-abortion groups pointed to several racial justice demonstrations where participants allegedly violated the same ordinance without facing defacement arrests. On June 6, 2020, protesters added “Defund the Police” to the city-commissioned Black Lives Matter mural without authorization. Despite the obvious alteration of a public street, no one was arrested or charged under the defacement law.
The most damaging comparison came from an August 16 demonstration near the United States Chamber of Commerce. Body camera footage showed at least two people spray painting the street in clear view of police officers, yet officers made no arrests for defacement. Washable chalk triggered immediate enforcement at a small, controlled gathering, while visible spray painting at another political event produced restraint and explanations.
An appeals court already found serious problems with Boasberg’s approach.
Boasberg dismissed the organizations’ amended complaint in September 2021 after concluding that they had not adequately alleged discriminatory intent. The D.C. Circuit disagreed with his treatment of the First Amendment claim and revived it in a unanimous decision on August 15, 2023. The appellate court explained that viewpoint discrimination can violate free speech protections regardless of whether plaintiffs prove personal hostility or an openly stated discriminatory motive.
The D.C. Circuit opinion found that the organizations had plausibly alleged that Washington treated similarly situated speakers differently. It affirmed the dismissal of the separate equal protection claim, but it ruled that Boasberg had applied the wrong analysis to the free speech dispute. For Americans watching from outside the legal profession, the message seemed unmistakable: a court cannot bury a credible viewpoint discrimination claim under an unnecessarily demanding legal standard.
Boasberg dismissed the case again after reviewing the evidence.
After the appellate court sent the case back, both sides gathered evidence through discovery and submitted competing motions for summary judgment. Boasberg reviewed videos, body camera recordings, testimony, permits, and written communications before ruling for Washington on February 24, 2026. This time, he concluded that no reasonable jury could find the anti-abortion protesters similarly situated to the racial justice protesters.
Boasberg relied heavily on crowd size, traffic conditions, officer safety, prior warnings, and the possibility that arrests at racial justice demonstrations could have escalated tensions. The August 1 protest occurred on a closed side street where officers outnumbered demonstrators, making arrests comparatively easy. His reasoning effectively turned the peaceful and manageable nature of the pro-life demonstration into a factor supporting harsher enforcement.
The public safety explanation creates an ugly incentive.
Police officers must consider public safety, and no responsible analysis should pretend that every protest presents identical conditions. Still, Boasberg’s reasoning creates a disturbing practical incentive: the larger, angrier, and more difficult a political gathering becomes, the easier it may be for participants to avoid enforcement. The smaller and more cooperative a group remains, the safer it becomes for authorities to arrest its members.
That logic lands badly with Americans who already believe government often rewards disorder while punishing compliance. A person who politely asks permission, obtains a permit, and demonstrates with a small group can become the easiest target because officials expect little resistance. Meanwhile, a larger movement can gain a functional exemption because enforcing the same rule might anger the crowd.
The judge may have decided facts that belonged to a jury.
The organizations argue that Boasberg did more than identify undisputed differences between the demonstrations. They contend that he weighed the importance of those differences, interpreted officers’ motivations, and decided whether the government’s public safety justification was persuasive. Those tasks become problematic at summary judgment when competing evidence could allow a reasonable jury to reach a different conclusion.
Under Federal Rule of Civil Procedure 56, a judge may end a case before trial only when no genuine dispute exists concerning a material fact and one side deserves judgment as a matter of law. The appellants say body camera footage showing officers watching spray painting during a relatively contained August 16 gathering creates exactly the type of factual conflict jurors should examine. Their argument is not that they automatically deserve to win, but that Boasberg should not have made the decisive factual judgments himself.
Jonathan Turley sees a pattern of judicial overreach.
In a July 22, 2026, Fox News column, constitutional law professor Jonathan Turley argued that Boasberg has developed an expansive view of his authority while condemning President Trump for allegedly exceeding executive power. Turley connected the chalk protest ruling to Boasberg’s handling of contempt proceedings involving Trump administration deportation flights. His criticism presents Boasberg’s decisions as part of a recurring pattern rather than isolated legal disagreements.
That comparison carries weight because the D.C. Circuit issued a serious rebuke in the deportation controversy. On April 14, 2026, a divided panel halted Boasberg’s renewed contempt inquiry, with the majority describing the proceedings as a clear abuse of discretion and an improper intrusion into executive decision-making. Although the appellate decision included a forceful dissent, the ruling strengthened criticism that Boasberg sometimes pushes his authority beyond defensible limits.
Americans should care even if they reject the protesters’ message.
The easiest response is to treat the dispute as another abortion argument and choose a side based on ideology. That would miss the constitutional danger, because free speech protections matter most when officials dislike the speaker or find the message politically inconvenient. A government that can selectively enforce a neutral law against pro-life advocates today can use the same machinery against environmental activists, gun rights supporters, labor organizers, religious groups, or racial justice demonstrators tomorrow.
No American should need the mayor’s approval before expecting equal treatment under an ordinary public property law. Political popularity cannot become an unofficial permit, and an unpopular viewpoint cannot become probable cause for immediate punishment. Once government officials learn that selective enforcement can be defended through broad references to context and public safety, every disfavored group becomes vulnerable.
The second appeal could expose how unequal enforcement survives.
The organizations filed their latest appeal in March 2026, creating D.C. Circuit case number 26-7032. According to the appellate docket, the Frederick Douglass Foundation, Students for Life of America, and three individuals are challenging the summary judgment entered for Washington. Their July opening brief asks the appellate court to reverse Boasberg and allow a jury to examine the selective enforcement evidence.
The D.C. Circuit could affirm the ruling, return the case for further proceedings, or conclude that the evidence must reach a jury. Whatever the outcome, the appeal will determine how easily officials can rely on crowd conditions and enforcement discretion after treating political messages differently. It may also decide whether Boasberg correctly followed the appellate court’s earlier instructions or found a new route to the same dismissal.
Equal justice cannot depend on which slogan officials prefer
The most damaging feature of this case is its simplicity. Two people used washable chalk during a peaceful demonstration, and police arrested them, while other protesters visibly painted political messages without suffering the same immediate consequence. Washington may have legitimate explanations, but the public deserves to know whether those explanations can withstand examination by citizens sitting on a jury.
Americans have watched powerful institutions apply one standard to favored groups and another to everyone else for far too long. When government officials tolerate one political message but punish another, trust collapses because the law stops looking neutral. If equal justice means anything, it must protect the speaker whose message city leaders would rather not see written on the sidewalk.
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