Mahoney v. Doe

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2010 Decided June 21, 2011

No. 09-7131

PATRICK MAHONEY, REVEREND, ET AL.,

APPELLANTS

v.

JOHN DOE, IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER,

METROPOLITAN POLICE DEPARTMENT, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00105)

Carly F. Gammill argued the cause for appellants. With

her on the briefs was James Matthew Henderson Sr.

Carl J. Schifferle, Assistant Attorney General, Attorney

General’s Office for the District of Columbia, argued the

cause for appellees. With him on the brief were Peter J.

Nickles, Attorney General, Todd S. Kim, Solicitor General,

and Donna M. Murasky, Deputy Solicitor General.

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Ronald C. Machen Jr., U.S. Attorney, and R. Craig

Lawrence and Marina U. Braswell, Assistant U.S. Attorneys,

were on the brief for amicus curiae National Park Service in

support of appellees.

Before: HENDERSON, BROWN and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Circuit Judge KAVANAUGH.

BROWN, Circuit Judge: Section 22-3312.01 of the

District of Columbia Code prohibits the defacement of public

and private property. Appellants, Rev. Patrick Mahoney,

Kaitlin Clare Martinez, the Christian Defense Coalition,

Cradles of Love, Inc., and Cheryl Conrad (collectively,

“Mahoney”) claim that prohibition, both on its face and as

applied, violates their First Amendment right to chalk the

1600 block of Pennsylvania Avenue (literally, the street in

front of the White House). The district court concluded

otherwise. We now affirm.

I

On November 24, 2008, Mahoney notified the

Metropolitan Police Department (“MPD”) and the

Department of the Interior (“DOI”) of his intent to carry out a

sidewalk chalk demonstration in front of the White House.

The purpose of the demonstration was to protest President

Obama’s position on abortion, and to protest the anniversary

of the Supreme Court’s decision in Roe v. Wade, 410 U.S.

113 (1973).

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The MPD responded to Mahoney’s request, asking for

more information about the number of protestors expected

and the time the protest would occur. In addition, the MPD

warned that sidewalk “chalking” in front of the White House

would constitute defacement of public property in violation of

the District of Columbia’s Defacement Statute, D.C. Code

§ 22-3312.01 (“Defacement Statute”).1 The Defacement

Statute provides:

It shall be unlawful for any person or persons

willfully and wantonly to disfigure, cut, chip,

or cover, rub with, or otherwise place filth or

excrement of any kind; to write, mark, or print

obscene or indecent figures representing

obscene or objects upon; to write, mark, draw,

or paint, without the consent of the owner or

proprietor thereof, or, in the case of public

property, of the person having charge, custody,

or control thereof, any word, sign, or figure

upon: Any property, public or private,

building, statue, monument, office, public

passenger vehicle, mass transit equipment or

facility, dwelling or structure of any kind . . . .

D.C. Code § 22-3312.01.

Mahoney responded by demanding the MPD reverse its

position and provide a “written assurance POST HASTE”

authorizing his chalking demonstration. In addition,

1

The National Park Service (“NPS”), which maintains authority

over the sidewalks abutting the 1600 block of Pennsylvania Avenue

pursuant to an interagency agreement, also responded to Mahoney’s

request. The NPS said Mahoney’s demonstration would violate

NPS regulations prohibiting the defacement of cultural resources.

See 36 C.F.R. §§ 2.1(a)(6), 2.31(a)(3).

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Mahoney noted the District of Columbia had previously

approved similar chalking events across the D.C. metropolitan

area, including annual youth chalk art contests and a “Chalk

for Peace” event in the summer of 2005. Three days after

receiving Mahoney’s letter, the MPD granted Mahoney

approval to conduct an assembly in front of the White House

“consisting of no more than 5,000 persons . . . permitted to

possess signs and banners.” The MPD refused, however, to

grant Mahoney permission to “use chalk or any other material

to mark the surfaces of Pennsylvania Ave.”

On January 16, 2009, Mahoney sued the MPD and the

District of Columbia (collectively, the “District”). Mahoney

requested a temporary restraining order and preliminary

injunction to keep the District from preventing Mahoney’s

chalking demonstration. The district court held an expedited

hearing, but denied Mahoney’s request for equitable relief

without a written opinion. Two days later, Mahoney began

chalking the street in front of the White House. MPD officers

asked Mahoney for identification, confiscated his chalk, and

directed him to stop. Mahoney obliged and the incident

ended peacefully. The officers did not take Mahoney into

custody or formally charge him with any offense.

After his failed chalking demonstration, Mahoney

amended his complaint, adding John Doe, the unidentified

MPD officer who prevented Mahoney from chalking on

January 24, 2009, and asserting six separate causes of action,

three of which Mahoney pursues on appeal. Mahoney claims

the Defacement Statute is unconstitutional on its face, is

unconstitutional as applied to his efforts to chalk the street in

front of the White House, and violates the Religious Freedom

Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. The

District moved to dismiss Mahoney’s amended complaint, or

in the alternative, for summary judgment. The district court

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granted the District’s motion. Because it is not “generally

desirable” to consider a facial First Amendment challenge

“before it is determined that the statute would be valid as

applied,” Board of Trustees of State University of New York v.

Fox, 492 U.S. 469, 484–85 (1989), we begin with Mahoney’s

as-applied challenge.

II

The First Amendment says, “Congress shall make no

law . . . abridging the freedom of speech . . . or the right of the

people . . . to petition the Government for a redress of

grievances.” Mahoney claims the First Amendment protects

his right to chalk the street in front of the White House and

the District violated this right “[b]y threatening to apply” the

Defacement Statute to his expressive conduct. Comp. ¶ 170.

To resolve Mahoney’s claim, we proceed in three steps: first,

determining whether the First Amendment protects the speech

at issue, then identifying the nature of the forum, and finally

assessing whether the District’s justifications for restricting

Mahoney’s speech “satisfy the requisite standard.” Cornelius

v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797

(1985).

A

This is a somewhat unusual First Amendment case.

Section 22-3312.01 does not regulate speech; nor does the

code section directly implicate the content of speech by

defining the expressive content of the speech (e.g., a terrorist

threat) as the relevant harm. The Defacement Statute

criminalizes the conduct of defacing, defiling, or disfiguring

property by various means—some of which are clearly

expressive, like painting, drawing, or writing, while others,

like vandalizing or physically damaging property, are

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primarily destructive and only secondarily expressive.

Moreover, because prohibited activities may be permitted

with the land owner’s consent, the Defacement Statute bears a

likeness to more conventional licensing schemes. Thus,

enforcement of the Defacement Statute will not always

implicate the First Amendment.

But here, the parties agree the creation of words or

images through chalk is an expressive act. Because the First

Amendment “affords protection to symbolic or expressive

conduct as well as to actual speech,” Mahoney’s proposal

clearly implicates the First Amendment. Virginia v. Black,

538 U.S. 343, 358 (2003). The District’s actions, therefore,

can be analyzed within the usual First Amendment

framework. The gravamen of this appeal is whether the

District violated the constitutional guarantee by prohibiting

Mahoney from placing his chalked message on the street in

front of the White House.

B

“[T]he extent of scrutiny given to a regulation of

speech—in effect, how we examine the directness with which

it promotes the government’s goals and the degree to which it

burdens speech—depends on whether the regulation applies

in a public or nonpublic forum.” Boardley v. United States

Dep’t of Interior, 615 F.3d 508, 514 (D.C. Cir. 2010). The

type of forum—public, designated public, or nonpublic—

determines the extent to which government can control

speech. See Initiative & Referendum Inst. v. U.S. Postal

Serv., 417 F.3d 1299, 1305–06 (D.C. Cir. 2005). “Traditional

public fora are those places which by long tradition or by

government fiat have been devoted to assembly and debate.”

Cornelius, 473 U.S. at 802. A designated public forum

consists of “public property which the state has opened for

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use by the public as a place for expressive activity.” Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45

(1983). Lastly, “a nonpublic forum is by contradistinction

‘public property which is not by tradition or designation a

forum for public communication.’” Boardley, 615 F.3d at

514 (quoting Perry Educ. Ass’n, 460 U.S. at 46).

There is little dispute the street in front of the White

House is a public forum. “‘[P]ublic places’ historically

associated with the free exercise of expressive activities, such

as streets, sidewalks, and parks, are considered, without more,

to be ‘public forums.’” United States v. Grace, 461 U.S. 171,

177 (1983) (citations omitted); see also United States v. Doe,

968 F.2d 86, 89 (D.C. Cir. 1992) (referring to the area in front

of the White House—Lafayette Park—as a public forum).

The District’s ability to restrict expressive conduct in a

traditional public forum is limited to the enforcement of time,

place, and manner regulations, provided the restrictions “‘are

content-neutral, are narrowly tailored to serve a significant

government interest, and leave open ample alternative

channels of communication.’” Grace, 461 U.S. at 177

(quoting Perry Educ. Ass’n, 460 U.S. at 45).

The District argues the 1600 block of Pennsylvania

Avenue is not a public forum when used as a “writing tablet.”

We interpret this as an argument that the 1600 block of

Pennsylvania Avenue is a designated public forum that

excludes certain media, including chalk. This is an odd

inversion of the typical forum dispute. Ordinarily, a litigant

argues the government has “carved out” a public forum from

an otherwise nonpublic space. See, e.g., Lamb’s Chapel v.

Center Moriches Union Free School Dist., 508 U.S. 384,

393–94 (1993) (finding school property a limited public

forum); Cornelius, 473 U.S. at 802–05 (rejecting the

argument that a charity drive at a government workplace is a

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public forum inside a non-public forum); Perry Educ. Ass’n,

460 U.S. at 45 (1983) (rejecting the argument that a school

district’s internal mail system was a public forum); Lehman v.

City of Shaker Heights, 418 U.S. 298, 299–300 (1974) (same

with regard to advertising space on city buses). In this case,

however, the government proposes to limit a preexisting

public forum by excising one class of expressive media.

The Supreme Court focuses on “the access sought by the

speaker” in defining a limited public forum’s boundaries.

Cornelius, 473 U.S. at 801. But in so doing, the Court takes a

“tailored approach,” id., “look[ing] to the policy and practice

of the government,” as well as “the nature of the property and

its compatibility with expressive activity,” id. at 802. Here,

the record contains no evidence that the 1600 block of

Pennsylvania Avenue has ever been designated as anything

but a public forum. Although the street is no longer open to

automobiles, it is open to pedestrians. It functions, for all

practical purposes, as an extension of the abutting sidewalk, a

space we previously held to be a public forum. See White

House Vigil for ERA Comm. v. Clark, 746 F.2d 1518, 1526–

27 (D.C. Cir. 1984). Moreover, the distinction the District

proposes is one without a difference: whether characterized as

a public forum or a designated public forum, the same legal

standard applies. See Perry Educ. Ass’n¸ 460 U.S. at 46.

In any event, the District conceded the 1600 block of

Pennsylvania Avenue is a public forum below, Motion to

Dismiss at 3, Docket 17 (“Defendants agree . . . the 1600

block of Pennsylvania Avenue is a traditional public

forum . . . .”), and raises this argument for the first time on

appeal. See Grant v. U.S. Air Force, 197 F.3d 539, 542 (D.C.

Cir. 1999) (“‘Absent exceptional circumstances, the court of

appeals is not a forum in which a litigant can present legal

theories that it neglected to raise in a timely manner in

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proceedings below.’”) (quoting Tomasello v. Rubin, 167 F.3d

612, 618 n. 6 (D.C.Cir.1999)).

C

Even under the standard that applies to speech

restrictions in a traditional public forum, the District insists

the chalking ban is narrowly tailored to serve a significant

government interest. We agree.

First, the Defacement Statute is indisputably content

neutral. It prohibits certain conduct (i.e. disfiguring, cutting,

chipping, defacing or defiling), including certain expressive

conduct (i.e. writing, marking, drawing, or painting), without

reference to the message the speaker wishes to convey. D.C.

Code § 22-3312.01. Nor is there any evidence in the record

the District adopted the Defacement Statute “because of

[agreement or] disagreement with the message” a speaker

may convey. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,

642 (1994) (quoting Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989)).

Second, the District’s interest in controlling the esthetic

appearance of the street in front of the White House is

substantial. In City Council of Los Angeles v. Taxpayers for

Vincent, the Supreme Court upheld a Los Angeles ordinance

regulating the posting of signs on public light posts. 466 U.S.

789, 806 (1984). In so doing, the Court stated that

“municipalities have a weighty, essentially esthetic interest in

proscribing intrusive and unpleasant formats for expression.”

Id.; see also, e.g., Metromedia, Inc. v. San Diego, 453 U.S.

490, 507–08, 510 (1981) (visual clutter); City of Shaker

Heights, 418 U.S. at 302 (intrusive advertising); Kovacs v.

Cooper, 336 U.S. 77, 86 (1949) (loud sound trucks

broadcasting messages). This is especially true here, where

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the special nature of the forum serves to heighten esthetic

concerns. See Heffron v. Int’l Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640, 650–51 (1981)

(“Consideration of a forum’s special attributes is relevant to

the constitutionality of a regulation since the significance of

the governmental interest must be assessed in light of the

characteristic nature and function of the particular forum

involved.”); White House Vigil, 746 F.2d at 1534–37

(describing the special esthetic considerations relevant to

restrictions on demonstrations at the White House).

The Defacement Statute is also sufficiently tailored to

serve the District’s esthetic interest. It is the tangible

medium—chalking—that creates the very problem the

Defacement Statute seeks to remedy. The same was true in

Taxpayers for Vincent, where the Court noted “the substantive

evil—visual blight—is not merely a possible by-product of

[posting signs], but is created by the medium of expression

itself.” 466 U.S. at 810. Undoubtedly, the Defacement

Statute encompasses some expressive activity. But “when

‘speech’ and ‘nonspeech’ elements are combined in the same

course of conduct, a sufficiently important governmental

interest in regulating the nonspeech element can justify

incidental limitations on First Amendment freedoms.” United

States v. O’Brien, 391 U.S. 367, 376–77 (1968). It is true, the

defacement at issue is temporary and can be cured. But the

same was true in Taxpayers for Vincent. The government can

proscribe even temporary blight. 466 U.S. at 810.

Finally, the District’s threatened use of the Defacement

Statute leaves Mahoney with alternative channels of

communication. Heffron, 452 U.S. at 655 (holding state fair

rule, prohibiting sale or distribution on fair grounds of any

merchandise including printed or written material, did not

violate First Amendment, as applied to members of a religious

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sect because the rule did not “unnecessarily limit” the

members’ right to speak within the fairgrounds). The District

granted Mahoney approval to conduct an assembly in front of

the White House, for which he was “permitted to possess

signs and banners.” Mahoney argues this was inadequate

because “the only thing [he] couldn’t do was the only thing

[he] asked to do.” Oral Arg. Tr. 10. But the scope of

Mahoney’s request cannot define the available “channels of

communication.” If Mahoney exclusively asked to post signs

on light posts, he could not do so under Taxpayers for

Vincent, 466 U.S. at 810. And if Mahoney asked to litter, he

could not do so under Schneider v. State, 308 U.S. 147, 160–

62 (1939). Mahoney initially requested permission to conduct

a “demonstration” consisting of “a variety of verbal and

visual messages.” The District’s threatened use of the

Defacement Statute did not curtail Mahoney’s plans.

Mahoney was free to announce any “verbal” message he

chose. And, Mahoney could depict visual messages on signs,

banners, and leaflets. Thus, ample alternative channels of

communication existed.

In sum, the Defacement Statute is content neutral, and

substantially justified by the District’s esthetic interest in

combating the very problem Mahoney’s proposed chalking

entails—the defacement of public property. Because the

District did not curtail Mahoney’s means of expression

altogether, and allowed him to protest in front of the White

House in other ways, the Defacement Statute is not

unconstitutional as applied.

III

In addition to his as applied challenge, Mahoney alleges

the Defacement Statute is facially unconstitutional. “[T]o

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prevail on a facial attack the plaintiff must demonstrate the

challenged law either ‘could never be applied in a valid

manner’ or that even though it may be validly applied to the

plaintiff and others, it nevertheless is so broad that it ‘may

inhibit the constitutionally protected speech of third parties.’”

N.Y. State Club Ass’n. v. City of New York, 487 U.S. 1, 11

(1988) (quoting Taxpayers for Vincent, 466 U.S. at 798).

A

We need not linger too long on whether the Defacement

Statute could ever be applied in a valid manner. As discussed

above, it is constitutional as applied to Mahoney himself.

Moreover, Mahoney only argues the Defacement Statute is

unconstitutional to the extent it applies to public property.

Oral Arg. Tr. at 25. But the statute applies to public and

private property alike. D.C. Code § 22-3312.01. And, to the

extent the Defacement Statute prohibits defacing private

property, it does not abridge the First Amendment. See Nat’l

Org. for Women v. Operation Rescue, 37 F.3d 646, 655 (D.C.

Cir. 1994) (citing Lloyd Corp. v. Tanner, 407 U.S. 551, 568

(1972)). Mahoney’s facial challenge thus hinges on whether

the Defacement Statute is overbroad. See Ashcroft v. Free

Speech Coal., 535 U.S. 234, 255 (2002); Initiative and

Referendum Inst., 417 F.3d at 1314–15.

B

Under the overbreadth doctrine, “a person may challenge

a statute that infringes protected speech even if the statute

constitutionally might be applied to him.” Ohralik v. Ohio

State Bar Ass’n., 436 U.S. 447, 462 n.20 (1978). But “the

scope of the First Amendment overbreadth doctrine . . . must

be carefully tied to the circumstances in which facial

invalidation of a statute is truly warranted.” New York v.

13

Ferber, 458 U.S. 747, 769 (1982). To prevail, a party must

show the statute at issue “is ‘substantially’ overbroad, which

requires the court to find ‘a realistic danger that the statute

itself will significantly compromise recognized First

Amendment protections of parties not before the Court.’”

N.Y. State Club Ass’n., 487 U.S. at 11 (quoting Taxpayers for

Vincent, 466 U.S. at 801).

Mahoney argues the Defacement Statute is overbroad

because it targets “conduct commonly associated with

expression,” and provides the District with unbridled

discretion to censor that expression. City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 760–61 (1988). But

Mahoney fails to identify any “significant difference”

between his facial and as applied challenges. Taypayers for

Vincent, 466 U.S. at 802. Specifically, Mahoney does not

argue the Defacement Statute is unconstitutional as-applied to

any circumstances other than his own. Nor does Mahoney

argue there is a likelihood of prosecution under the

Defacement Statute that deters otherwise protected speech. In

fact, Mahoney cites no prior example of the District’s

enforcement of the Defacement Statute, constitutional or not.

And, Mahoney concedes, “the District itself sponsors and

invites citizens to come and chalk in various locations

throughout the city,” even closing off a street annually for

students to chalk. Oral Argument at 6. “The overbreadth

claimant bears the burden of demonstrating, ‘from the text of

[the law] and from actual fact,’ that substantial overbreadth

exists.” Virginia v. Hicks, 539 U.S. 113, 122 (2003) (quoting

N.Y. State Club Ass’n, 487 U.S. at 14). In short, Mahoney’s

overbreadth challenge fails because he cannot show any

“realistic danger” the Defacement Statute actually chills

constitutionally protected speech. N.Y. State Club Ass’n, 487

U.S. at 11.

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IV

Next, Mahoney claims the District violated his rights

under the RFRA because his efforts to chalk the sidewalk in

front of the White House were religiously motivated. The

RFRA prohibits the District from “substantially burden[ing] a

person’s exercise of religion” unless the District

“demonstrates that application of the burden to the person (1)

is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000bb-1(a)–(b); see id.

§ 2000bb-2(1)–(2) (including the District as a “covered

entity”).

The district court accepted Mahoney’s allegation that his

proposed chalking was motivated by a sincere religious belief.

But the district court rejected Mahoney’s RFRA claim

because his amended complaint did not establish chalk was

the exclusive medium through which Mahoney could express

his religious views. Indeed, the amended complaint alleges

chalk art is only “part of [Mahoney’s] public prayer vigils,

demonstrations, protests and rallies.” Complaint ¶ 56.

Mahoney argues the district court erred by narrowly focusing

on the medium—not the message. According to Mahoney the

district court should have exclusively considered (1) whether

his religious belief was sincere, and (2) whether the District’s

action substantially burdened “a religious practice” of his.

Mahoney’s novel two-step legal framework is at odds

with this court’s precedent. In Henderson v. Kennedy, 253

F.3d 12 (D.C. Cir. 2001), we explained that “to make

religious motivation the critical focus is . . . to read out of

RFRA the condition that only substantial burdens on the

exercise of religion trigger the compelling interest

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requirement.” Id. at 17. Henderson instead focused RFRA’s

“substantial burden” inquiry on the nexus between religious

practice and religious tenet: whether the regulation at issue

“force[d plaintiffs] to engage in conduct that their religion

forbids or . . . prevents them from engaging in conduct their

religion requires.” Id. at 16. There is an important benefit of

this latter approach. In adhering to RFRA’s plain text, it

avoids expanding RFRA’s coverage beyond what Congress

intended, preventing RFRA claims from being reduced into

questions of fact, proven by the credibility of the claimant.

The facts of Henderson are also difficult to distinguish.

There, we upheld a National Park Service regulation banning

the sale of message-bearing t-shirts in designated sections of

the National Mall, against a RFRA challenge brought by a

group of evangelical Christians. Id. In so doing, we reasoned

the ban on t-shirt sales was not a substantial burden on the

exercise of religion because it was “at most a restriction on

one of a multitude of means” by which the appellants could

engage in their vocation to spread the gospel. Id. at 17

(noting appellants could “still distribute t-shirts for free on the

Mall, or sell them on streets surrounding the Mall”). As in

Henderson, the District’s threatened use of the Defacement

Statute prohibits only “one of a multitude of means” of

conveying Mahoney’s religious message. Mahoney may still

spread his message through picketing, a public prayer vigil, or

other similar activities in which he has previously engaged.

The Defacement Statute does not realistically prevent

Mahoney from chalking elsewhere, as Mahoney concedes the

District allowed him to do in the past.

Mahoney attempts to distinguish Henderson on two

grounds. First, he argues the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”) overruled

Henderson by amending RFRA’s definition of “exercise of

16

religion” to include “any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.” But,

as the court explained when it denied the petition for

rehearing en banc in Henderson, “[RLUIPA] did not alter the

propriety of inquiring into the importance of a religious

practice when assessing whether a substantial burden exists.”

265 F.3d 1072, 1074 (D.C. Cir. 2001). Second, Mahoney

argues the regulation at issue in Henderson was a partial ban,

prohibiting the “sale” of t-shirts but not their distribution,

whereas the District’s prohibition on chalking in front of the

White House is complete. But this argument amounts to

nothing more than a word game, altering the perceived

breadth of the government restriction by narrowing the

pertinent expressive activity at issue. There is nothing in

Henderson, or in post-Henderson RLUIPA cases, that

indicates RFRA’s “substantial burden” analysis is subject to

such manipulation.

V

Mahoney claims the Defacement Statute violates the First

Amendment, both on its face, and as applied to his efforts at

chalking the street in front of the White House. But Mahoney

cannot bring a facial challenge because the Defacement

Statute is constitutional in certain circumstances, and

Mahoney points to no “realistic danger” that it will otherwise

be applied in an unconstitutional manner. Nor can we

distinguish Mahoney’s as-applied claim from the as applied

challenge rejected by the Supreme Court in Taxpayers for

Vincent. As a result, the order of the district court dismissing

this case is

Affirmed.

KAVANAUGH, Circuit Judge, concurring:

I agree with and join the Court’s thorough and well-

crafted opinion in its entirety. As the Court holds, the District

of Columbia may prohibit defacement of Pennsylvania

Avenue in front of the White House. The prohibition is a

reasonable time, place, and manner restriction for purposes of

First Amendment doctrine.

I add these few words simply because I do not want the

fog of First Amendment doctrine to make this case seem

harder than it is. No one has a First Amendment right to

deface government property. No one has a First Amendment

right, for example, to spray-paint the Washington Monument

or smash the windows of a police car. As Justice Rehnquist

succinctly said: “One who burns down the factory of a

company whose products he dislikes can expect his First

Amendment defense to a consequent arson prosecution to be

given short shrift by the courts. . . . The same fate would

doubtless await the First Amendment claim of one prosecuted

for destruction of government property after he defaced a

speed limit sign in order to protest the stated speed limit.”

Smith v. Goguen, 415 U.S. 566, 594 (1974) (Rehnquist, J.,

dissenting on separate point). When, as here, the Government

applies a restriction on defacement in a content-neutral and

viewpoint-neutral fashion, there can be no serious First

Amendment objection. See, e.g., City Council of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789, 809-10 (1984);

Schneider v. State, 308 U.S. 147, 160-61 (1939).