Frederick Douglass Foundation, Inc. v. DC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 28, 2022 Decided August 15, 2023

No. 21-7108

FREDERICK DOUGLASS FOUNDATION, INC., ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-03346)

Erin M. Hawley argued the cause for appellants. With her

on the briefs were John J. Bursch, Kevin H. Theriot, and Jacob

P. Warner.

Samuel J. Salario, Jr. was on the brief for amicus curiae

Americans United for Life in support of appellants.

Jacob L. Phillips was on the brief for amicus curiae The

Susan B. Anthony List in support of appellants.

Carl J. Schifferle, Deputy Solicitor General, Office of the

Attorney General for the District of Columbia, argued the cause

for appellee. With him on the brief were Karl A. Racine,

2

Attorney General, Caroline S. Van Zile, Solicitor General, and

Ashwin P. Phatak, Principal Deputy Solicitor General.

Before: WILKINS, RAO and CHILDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

Opinion concurring in the judgment filed by Circuit Judge

WILKINS.

RAO, Circuit Judge: The First Amendment prohibits

government discrimination on the basis of viewpoint. “To

permit one side … to have a monopoly in expressing its

views … is the antithesis of constitutional guarantees.” City of

Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm’n,

429 U.S. 167, 175–76 (1976). The protection for freedom of

speech applies not only to legislation, but also to enforcement

of the laws. This case concerns a constitutional challenge to the

selective enforcement of the District of Columbia’s defacement

ordinance against some viewpoints but not others.

In the summer of 2020, thousands of protesters flooded the

streets of the District to proclaim “Black Lives Matter.” Over

several weeks, the protesters covered streets, sidewalks, and

storefronts with paint and chalk. The markings were ubiquitous

and in open violation of the District’s defacement ordinance,

yet none of the protesters were arrested. During the same

summer, District police officers arrested two pro-life advocates

in a smaller protest for chalking “Black Pre-Born Lives Matter”

on a public sidewalk.

The organizers of the smaller protest, the Frederick

Douglass Foundation and Students for Life of America

(collectively “the Foundation”), sued. The Foundation alleged

violations of the First and Fifth Amendments, conceding the

defacement ordinance was facially constitutional, but arguing

3

the District’s one-sided enforcement of the ordinance was not.

The district court dismissed the complaint. Concluding the

First Amendment and equal protection claims were essentially

the same, the district court held the Foundation had failed to

adequately allege discriminatory intent, which the court

considered a necessary element of both claims.

We affirm the district court’s dismissal of the

Foundation’s equal protection claim because the Foundation

has not plausibly alleged invidious discrimination by District

officials. Discriminatory motive, however, is not an element of

a First Amendment free speech selective enforcement claim.

The First Amendment prohibits discrimination on the basis of

viewpoint irrespective of the government’s motive. We hold

the Foundation has plausibly alleged the District discriminated

on the basis of viewpoint in the selective enforcement of its

defacement ordinance. We therefore reverse the dismissal of

the Foundation’s First Amendment claim and remand for

further proceedings.

I.

This case is about the District’s alleged discriminatory

enforcement of its defacement ordinance. The ordinance

prohibits “willfully and wantonly … writ[ing], mark[ing],

draw[ing], or paint[ing]” on public or private property, without

the consent of the owner or the public official controlling the

property.1 D.C. CODE § 22–3312.1. The parties agree the

1

“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 upon; to write, mark, or print

obscene or indecent figures representing obscene or objects upon

[sic]; 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

4

ordinance does not, on its face, violate the First Amendment.

The provision is content- and viewpoint-neutral and serves the

District’s interest in preventing vandalism. Instead, the

Foundation alleges the District discriminated on the basis of

viewpoint by selectively enforcing the ordinance against those

who chalked “Black Pre-Born Lives Matter,” but not against

those who painted, marked, and chalked “Black Lives Matter.”

At the motion to dismiss stage, we “accept as true all of

the allegations” in the complaint. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). We recount the facts as set forth by the

Foundation, most of which are not contested by the District.

A.

George Floyd’s death at the hands of a Minneapolis police

officer in May 2020 sparked a wave of protests across the

country. The District played host to some of the largest and

most sustained of these Black Lives Matter protests, which

addressed the excessive use of police force and other issues of

racial justice. Most of the protests occurred in May and early

June but some scattered events continued until late summer.

District leadership, including Mayor Muriel Bowser, supported

the message of the protests and commissioned a painting of

upon: (1) any property, public or private, building, statue, monument,

office, public passenger vehicle, mass transit equipment or facility,

dwelling or structure of any kind including those in the course of

erection; or (2) the doors, windows, steps, railing, fencing, balconies,

balustrades, stairs, porches, halls, walls, sides of any enclosure

thereof, or any movable property.” D.C. CODE § 22–3312.1.

5

“Black Lives Matter” to cover a street for more than a city

block.2

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. The complaint offers a number of examples. The day

after Mayor Bowser’s street mural was revealed, protestors

added an equal sign and “Defund the Police,” so the message

read “Black Lives Matter = Defund the Police.”

2

The District’s “Black Lives Matter” mural was government speech

displayed on government controlled property, and therefore not part

of the alleged violations of the defacement ordinance.

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Police officers watched as the alteration took place and did

nothing to stop it. Although the Black Lives Matter advocates

did not seek a permit or otherwise receive consent, they were

neither arrested nor charged under the defacement ordinance.

In fact, the District left the addition in place for months,

eventually removing it in mid-August.

Black Lives Matter protesters also covered construction

scaffolding outside the Chamber of Commerce with graffiti,

murals, and photographs. Again the protesters were neither

stopped nor arrested for blatant violations of the defacement

ordinance.3 Over weeks and months, many individuals painted

streets, sidewalks, and storefronts with graffiti and chalk

espousing variations on the “Black Lives Matter” message. Not

a single permit was sought, and not one person was punished

for violating the defacement ordinance. For months, the

District allowed many of the Black Lives Matter markings,

paintings, and drawings to remain on public property.

3

The defacement ordinance applies specifically to construction sites.

See D.C. CODE § 22–3312.1(1) (prohibiting marking on structures

and buildings, “including those in the course of erection”).

7

Also in the summer of 2020, two pro-life organizations

planned a protest. The Frederick Douglass Foundation is a non-

profit education and policy group that advocates for free

markets and limited government. Among other things, the

Frederick Douglass Foundation “acts as a liaison between

black, faith-based organizations” and elected officials, and

seeks to protect “black babies still in the womb.” Students for

Life of America, the nation’s largest pro-life youth

organization, recruits and mobilizes students to help abolish

abortion. These organizations planned a small rally—for less

than 50 supporters—to proclaim “Black Pre-Born Lives

Matter” and paint this message on the streets.

In the lead up to the pro-life rally, the Foundation applied

for and received a permit to assemble. In a conversation about

the permit, a police officer gave the Foundation verbal

permission to paint its “Black Pre-Born Lives Matter” message

on the street. The officer explained that he believed Mayor

Bowser had effectively opened up the District’s streets for

political markings. The Foundation also sent a letter to Mayor

Bowser asking to paint a mural and declaring it a constitutional

right to do so. Mayor Bowser did not respond.

When the pro-life advocates arrived for their rally on

August 1, six police cars and many police officers were

waiting. The officers said the advocates could assemble in

accordance with the Foundation’s permit, but if they painted or

chalked their message on the sidewalk, they would be arrested

for violating the defacement ordinance. Two students 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. The entire

event was caught on video.

8

This was not the only incident. The Foundation planned to

hold another rally on March 27, 2021, to proclaim “Black Pre-

Born Lives Matter” and write their message on the public

street. The Foundation sought a permit and was allowed by the

District to assemble with a bullhorn and a music stand. The

District again denied the Foundation’s request to paint or mark

on the street or sidewalk.

B.

Having failed to secure a permit from the District, the

Foundation—joined by three individual members—sought to

enjoin the District from enforcing the defacement ordinance

during their rally on March 27. Frederick Douglass Found. v.

District of Columbia, 531 F. Supp. 3d 316, 322 (D.D.C. 2021).

The Foundation claimed the vigorous enforcement of the

ordinance against individuals expressing “Black Pre-Born

Lives Matter” and the lack of enforcement against individuals

expressing “Black Lives Matter” violated the Free Speech,

Free Exercise, and Free Association Clauses of the First

9

Amendment, the equal protection guarantee of the Fifth

Amendment, and the Religious Freedom Restoration Act

(“RFRA”). Id. at 328–45. The Foundation argued Mayor

Bowser and District officials discriminated against their pro-

life message, as evidenced by Mayor Bowser’s commissioning

of the Black Lives Matter mural and her strong public support

of Planned Parenthood and its pro-choice agenda. The

Foundation claimed the District seemed eager to arrest its

members, pointing to the rapid, coordinated, and

overwhelming response to the small gathering in August 2020.

Because its protest was similarly situated to the Black Lives

Matter protest, the Foundation argued that viewpoint

discrimination was the only explanation for the District’s

disparate treatment.

The district court declined to enjoin enforcement of the

defacement ordinance at the March 27 protest, concluding the

Foundation was not likely to succeed on the merits of its

constitutional and statutory claims. Id. at 345. In response, the

Foundation amended its complaint. The Foundation reiterated

its claims that the District had violated its members’ rights

under the First and Fifth Amendments, and under RFRA, by

allowing individuals to mark “Black Lives Matter” on public

streets and sidewalks, but arresting those who marked “Black

Pre-Born Lives Matter.” The Foundation sought a declaratory

judgment, preliminary and permanent injunctive relief, and

damages under 42 U.S.C. § 1983.

The district court granted the District’s motion to dismiss

for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). The court expressed uncertainty about how

to treat the free speech and equal protection claims in

particular, but ultimately concluded they were “essentially the

same.” Frederick Douglass Found. v. District of Columbia,

2021 WL 3912119, at *4 (D.D.C. Sept. 1, 2021). Moreover,

10

both constitutional claims failed because the Foundation had

not plausibly alleged the District had a discriminatory purpose.

In the alternative, the district court held the Foundation had not

sufficiently alleged the District had a policy of selective

enforcement, as required to establish municipal liability under

Monell v. Department of Social Services, 436 U.S. 658 (1978).

On appeal, the Foundation leaves aside its free exercise,

free association, and RFRA claims, but maintains the district

court erred by dismissing the free speech and equal protection

claims.

II.

We review de novo the district court’s dismissal for failure

to state a claim. Jackson v. Modly, 949 F.3d 763, 767 (D.C. Cir.

2020). To survive a motion to dismiss under Rule 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Iqbal,

556 U.S. at 678 (cleaned up). The court must be able to draw a

“reasonable inference that the defendant is liable for the

misconduct alleged.” Id. At this stage, “we construe the

complaint liberally,” granting the Foundation “the benefit of all

inferences that can be derived from the facts alleged.”

Zukerman v. USPS, 961 F.3d 431, 436 (D.C. Cir. 2020)

(cleaned up).

The Foundation alleges the District of Columbia is liable

under 42 U.S.C. § 1983 for viewpoint discrimination in the

selective enforcement of its defacement ordinance. Section

1983 provides, “[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of … the District of

Columbia, subjects, or causes to be subjected,

any … person … to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable.” A municipality or local government, such as the

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District, is a “person” for section 1983 purposes. See Monell,

436 U.S. at 692; Blue v. District of Columbia, 811 F.3d 14, 18

(D.C. Cir. 2015). Local governments, however, are not liable

for injuries inflicted solely by their employees or agents; the

government must be the “moving force” behind the violation.

Monell, 436 U.S. at 694. Therefore, to maintain its section 1983

claim, the Foundation must plausibly allege that the District

violated the Constitution and that the violation was the result

of an official custom or policy. Id.

III.

We begin with the constitutional violation. The

Foundation alleges the District selectively enforced its

defacement ordinance on the basis of viewpoint in violation of

the First and Fifth Amendments. A selective enforcement claim

has two elements: a plaintiff must demonstrate (1) he was

similarly situated in material respects to other individuals

against whom the law was not enforced, and (2) the selective

enforcement infringed a constitutional right. In this Part, we set

forth the similarly situated requirement and assess whether the

Foundation’s allegations are plausible.

A.

Selective enforcement claims require courts to separate

unlawful discrimination from the ordinary and lawful exercise

of prosecutorial discretion. Because the executive cannot

address every violation of the laws, the prosecution (and non-

prosecution) power is a vital aspect of the executive power.

See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974)

(explaining “the Executive Branch has exclusive authority and

absolute discretion to decide whether to prosecute a case”);

McCleskey v. Kemp, 481 U.S. 279, 311–12 (1987) (“[T]he

capacity of prosecutorial discretion to provide individualized

justice is firmly entrenched in American law.”) (cleaned up).

12

Prosecutorial discretion lies within the “special province of the

Executive Branch, inasmuch as it is the Executive who is

charged by the Constitution to ‘take Care that the Laws be

faithfully executed.’” Heckler v. Chaney, 470 U.S. 821, 832

(1985) (quoting U.S. CONST. art. II, § 3); see also Community

for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201

(D.C. Cir. 1986) (same). It follows from these principles that

the “conscious exercise of some selectivity in enforcement is

not in itself a federal constitutional violation.” See Oyler v.

Boles, 368 U.S. 448, 456 (1962).

Because prosecutorial discretion lies within the

executive’s sphere, the exercise of such discretion is not

generally reviewable by the courts. See ICC v. Bhd. of

Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (“[T]he refusal

to prosecute cannot be the subject of judicial review.”);

Heckler, 470 U.S. at 831 (describing “the general unsuitability

for judicial review of agency decisions to refuse

enforcement”). As we have explained, the “Executive’s

charging authority embraces decisions about whether to initiate

charges, whom to prosecute, which charges to bring,” and “[i]t

has long been settled that the Judiciary generally lacks

authority to second-guess those Executive determinations.”4

United States v. Fokker Servs. B.V., 818 F.3d 733, 737 (D.C.

Cir. 2016).

Despite the general presumption against judicial review of

prosecutorial decisions, courts may review selective

enforcement claims to assess whether the executive’s choice of

4

While these principles have been articulated with respect to the

Article II executive power vested in the President, the Mayor serves

as the chief executive of the District of Columbia and is required to

“take care that the laws be faithfully executed.” D.C. CODE § 1–

301.76; see also id. (“The Mayor of the District of Columbia may

grant pardons.”).

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prosecution targets infringes on constitutional rights. The

executive cannot selectively enforce the law in a way that

violates the Constitution. United States v. Batchelder, 442 U.S.

114, 125 (1979) (“Selectivity in the enforcement of criminal

laws is, of course, subject to constitutional constraints.”). And

“although prosecutorial discretion is broad, it is not

unfettered.” Wayte v. United States, 470 U.S. 598, 608 (1985)

(cleaned up).

Because selective enforcement claims risk invading the

“special province of … prosecutorial discretion,” the Supreme

Court has emphasized “that the standard for proving them is

particularly demanding.” Reno v. American-Arab Anti-

Discrimination Comm., 525 U.S. 471, 489 (1999). To make out

a selective enforcement claim, the target of enforcement must

displace “the presumption that a prosecutor has acted

lawfully.” Id. This requires a plaintiff to demonstrate he was

singled out for enforcement “from among others similarly

situated.” Branch Ministries v. Rossotti, 211 F.3d 137, 144

(D.C. Cir. 2000) (cleaned up).

Individuals “are similarly situated when their

circumstances present no distinguishable legitimate

prosecutorial factors that might justify making different

prosecutorial decisions with respect to them.” Id. at 145

(cleaned up); see also Att’y Gen. v. Irish People, Inc., 684 F.2d

928, 946 (D.C. Cir. 1982) (“Discrimination cannot exist in a

vacuum; it can be found only in the unequal treatment of people

in similar circumstances.”). The “similarly situated

requirement is necessary” to ensure courts are not

“‘interfer[ing] with the course of criminal justice.’” United

States v. Armstrong, 517 U.S. 456, 466–67 (1996) (quoting Ah

Sin v. Wittman, 198 U.S. 500, 508 (1905)).

14

The similarly situated requirement strikes the proper

balance between executive discretion and judicial enforcement

of constitutional rights by isolating whether a decision turns on

“unlawful favoritism,” rather than lawful prosecutorial

considerations. See Thomas v. Chi. Park Dist., 534 U.S. 316,

325 (2002). In practice, courts must assess whether a plaintiff

is similarly situated to a person against whom the law was not

enforced across the relevant prosecutorial factors. Such factors

may include “the strength of the case, the prosecution’s general

deterrence value, the Government’s enforcement priorities, and

the case’s relationship to the Government’s overall

enforcement plan.” Wayte, 470 U.S. at 607; see also Beverly

Health & Rehab. Servs. v. Feinstein, 103 F.3d 151, 153 (D.C.

Cir. 1996) (stating executive officials may balance

“culpability, evidence, prosecutorial resources, and the public

interest” in enforcement decisions).

The factors will vary and cannot be reduced to a singular

list. See Hu v. City of New York, 927 F.3d 81, 97 (2d Cir. 2019).

Determining whether a plaintiff is similarly situated to those

not prosecuted will be a fact-intensive and case-specific

comparative inquiry.

B.

The Foundation has plausibly alleged its members were

similarly situated to the Black Lives Matter advocates.

Accepting the Foundation’s facts as true, there are salient

similarities between the actions of the two groups. To begin

with, both groups gathered about matters of public concern and

sought to disseminate a political message, in one instance that

“Black Lives Matter,” and in the other that “Black Pre-Born

Lives Matter.” The locations of the gatherings were also the

same: namely public streets and sidewalks in the District. And

the events were proximate in time, held during the summer of

15

2020 when public attention focused on the problems of racial

justice and police violence against black Americans. Many

Black Lives Matter protests occurred in May and June, but at

least one event occurred as late as August 16. The Foundation

held its first rally between these dates, on August 1.

There was also strong evidence that both groups violated

the defacement ordinance. Black Lives Matter advocates

painted streets, sidewalks, and storefronts with messages such

as “Protect Black Youth,” “Our Streets,” and “Abolish the

Police.” The complaint includes photographs of the

conspicuous defacements. Similarly, the Foundation sought to

chalk the “Black Pre-Born Lives Matter” message

conspicuously on a public sidewalk. Police officers were

present and witnessed defacement by both groups. For

example, officers stood by and watched as the “Defund the

Police” message was added to the District’s Black Lives Matter

street painting. Both groups violated the defacement ordinance

by “writ[ing], mark[ing], draw[ing], or paint[ing]” on public

property without consent, D.C. CODE § 22–3312.1, and the

District was well aware of the violations.

Finally, the District’s differential response fails to

correspond with the culpability of the two groups or the general

deterrence value of enforcement against them. The

Foundation’s members managed to write a single, small pro-

life message in washable chalk before being arrested for

violating the defacement ordinance. By contrast, for weeks,

individuals participating in the Black Lives Matter protests

painted their messages on public streets and sidewalks, as well

as private property. And yet allegedly no arrests were made for

defacement that included the “Black Lives Matter” message.

This lopsided prosecutorial response—several arrests for

small, chalked pro-life messages and no arrests for widespread

“Black Lives Matter” messages—does not comport with the

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deterrence value or culpability associated with the number of

protesters and the scope of defacement, suggesting improper

selective enforcement.

We find the Foundation has plausibly alleged its members

were similarly situated to individuals expressing “Black Lives

Matter” across a range of relevant prosecutorial factors,

including the strength of the case, available evidence,

culpability, and the resources required to obtain a conviction.

C.

The District argues it is not plausible that individuals at the

Foundation’s small rally were similarly situated to individuals

at the Black Lives Matter protests. First, the District maintains

the Black Lives Matter protests were much larger, involving

tens of thousands of people flooding the streets of downtown

Washington. In light of the intensity and scale of the protests,

the District was concerned that making arrests for defacement

would drain police resources and distract officers from other

priorities, such as ensuring public safety and addressing

widespread looting and property damage.

We do not doubt these are legitimate prosecutorial factors

that will be part of the merits assessment of whether the

Foundation has demonstrated its members were similarly

situated. Nonetheless, at the motion to dismiss stage, the

Foundation’s allegations allow us to reasonably infer that its

protesters were similarly situated to at least some of the Black

Lives Matter protesters.

The comparison is not only between the Foundation’s

single, small rally and the large Black Lives Matter protests

that occurred over weeks. Rather, we consider whether the

plaintiffs were similarly situated to any individuals against

whom the defacement ordinance was not enforced. The

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complaint alleges that individuals violated the defacement

ordinance during Black Lives Matter protests that varied in size

and intensity. Even assuming the District is correct—and

defacement by individuals at the largest Black Lives Matter

protests presented distinct enforcement challenges—the

complaint includes allegations of non-enforcement at smaller

and more discrete Black Lives Matter events that are not so

easily distinguished. For example, on August 16, a smaller

Black Lives Matter event, “Reclaim DC,” called for individuals

to once again “create art in all forms” on H Street. There was

no enforcement of the defacement ordinance even at these

smaller events. Given the scope of the Black Lives Matter

protests, the extent of graffiti around the city, and the lack of

enforcement by District police, we can readily infer that the

Foundation’s members were at times similarly situated to

Black Lives Matter proponents.

Nor can the District rely on the fact that the Foundation

gave “advance notice” of its defacement by requesting a

permit, unlike the Black Lives Matter advocates. The District

does not deny that officers were present at the Black Lives

Matter protests, that vandalism and protest art were ubiquitous,

and that the protests were long running. “Advance notice” of

defacement does not distinguish the speakers. The officers

were equally aware and could anticipate that both the

Foundation’s and the Black Lives Matter events would include

defacement of public property with political speech. In fact,

one officer allegedly stated that Mayor Bowser had “opened

Pandora’s Box” with her response to the Black Lives Matter

protests and made it legal to paint on the streets. In such

circumstances, the request for a permit does not undermine the

Foundation’s selective enforcement allegations.5

5

The Supreme Court’s decision in Wayte also does not foreclose or

render implausible the Foundation’s claims. Wayte involved a draft

18

***

Selective enforcement claims must clear a high hurdle.

Because the lawful exercise of prosecutorial discretion does not

violate the Constitution, disparate enforcement of a neutral

ordinance based on viewpoint is unlawful only when the

prosecutorial factors are similar, and “unlawful favoritism”

remains the predominant explanation for the government’s

targets. See Thomas, 534 U.S. at 325. The Foundation has

plausibly alleged that when chalking the “Black Pre-Born

Lives Matter” message, its advocates were similarly situated to

advocates who painted and marked the “Black Lives Matter”

message.

IV.

The second element of a selective enforcement claim is the

infringement of a constitutional right. The Foundation alleges

dodger who wrote several letters to the government proclaiming his

refusal to register for the draft. 470 U.S. at 601. The Supreme Court

upheld the government’s passive enforcement policy of prosecuting

only those who self-reported their draft-dodger status or were

reported by others. Id. at 610. Relying on Wayte, the District

maintains it properly enforced the defacement ordinance against the

Foundation based on self-reporting. But the District’s comparison is

inapposite. In Wayte, locating other draft dodgers was “difficult and

costly.” Id. at 612. Here, the officers were present and watching the

defacement of property with “Black Lives Matter” messages. Unlike

in Wayte, there was no legitimate prosecutorial reason to treat self-

reporting differently in this case. Moreover, in resolving the First

Amendment claim in Wayte, the Court did not rely on the similarly

situated requirement, but instead on the strong national security

interest in enforcing the draft. Id. at 611. The District has offered no

compelling government interest in selectively enforcing the

defacement ordinance against individuals writing small pro-life

messages in washable chalk.

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the District’s selective enforcement of the defacement

ordinance violated the First and Fifth Amendments. We begin

with the First Amendment claim.

A.

The Foundation maintains the District engaged in

viewpoint discrimination by selectively enforcing the

defacement ordinance. The gravamen of the complaint is that

District police consistently declined to enforce the defacement

ordinance against individuals who expressed “Black Lives

Matter” messages through graffiti, painting, and chalking,

while vigorously enforcing the ordinance against individuals

chalking the “Black Pre-Born Lives Matter” message. The

Foundation recognizes the facial constitutionality of the

ordinance as a neutral time, place, or manner restriction, but

maintains the selective enforcement of the ordinance based on

the content and viewpoint of speech violates the First

Amendment. The precise doctrinal label for this type of claim

has generated some confusion, which we address below. See

infra Part C. The legal principles, however, are relatively

straightforward.

The First Amendment provides that “Congress shall make

no law … abridging the freedom of speech.” U.S. CONST.

amend. I. While the Amendment refers to Congress, its

prohibition against infringements on free speech applies

equally to executive actions.6 As the Supreme Court has

6

See, e.g., Nieves v. Bartlett, 139 S. Ct. 1715, 1720 (2019) (First

Amendment retaliation claim against two police officers who

arrested petitioner for disorderly conduct and resisting arrest);

Hartman v. Moore, 547 U.S. 250, 254, 256 (2006) (Bivens action

against postal inspectors for inducing a prosecution in retaliation for

speech); cf. Shrum v. City of Coweta, 449 F.3d 1132, 1140 (10th Cir.

2006) (McConnell, J.) (holding “the First Amendment applies to

20

recognized, “[t]he pervasive restraint on freedom of discussion

by the practice of the authorities under [a] statute is not any less

effective than a statute expressly permitting such selective

enforcement.” Cox v. Louisiana, 379 U.S. 536, 557 (1965). The

First Amendment protects against executive infringements on

free speech and was directed at the “core abuse” of licensing

laws that granted broad discretion to enforce vague legislative

schemes. Thomas, 534 U.S. at 320; see also James Madison,

Report of 1799, in THE VIRGINIA REPORT OF 1799–1800 &

VIRGINIA RESOLUTIONS OF DECEMBER 21, 1798, at 189, 220

(1850) (discussing freedom of the press under the common law

and arguing the First Amendment secures rights “against

legislative, as well as against executive ambition”); Jud

Campbell, Natural Rights and the First Amendment, 127 YALE

L.J. 246, 260 (2017) (explaining the Founders especially prized

“the common-law rule against press licensing”). Prosecutorial

decisions, like other government actions, cannot turn on the

exercise of free speech rights. Wayte, 470 U.S. at 608.

Specifically, selective enforcement of a neutral and

facially constitutional law may run afoul of the First

Amendment if the government’s prosecutorial choices turn on

the content or viewpoint of speech. It is well established the

government “may not regulate speech based on its substantive

content or the message it conveys.” Rosenberger v. Rector &

Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995). Thus,

“[c]ontent-based regulations are presumptively invalid.”

R. A. V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

Restrictions based on viewpoint are especially invidious;

viewpoint discrimination is “poison.” Iancu v. Brunetti, 139

S. Ct. 2294, 2302 (2019) (Alito, J., concurring); see also

exercises of executive authority no less than it does to the passage of

legislation,” a principle that the Supreme Court has “assumed on

countless occasions”).

21

Rosenberger, 515 U.S. at 829. It is antithetical to a free society

for the government to give “one side of a debatable public

question an advantage in expressing its views to the people.”

First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 785 (1978).

“[G]overnment favoritism in public debate is so pernicious to

liberty and democratic decisionmaking” that viewpoint

discrimination will almost always be “rendered

unconstitutional.” Archdiocese of Wash. v. Wash. Metro. Area

Transit Auth., 897 F.3d 314, 337 (D.C. Cir. 2018) (Wilkins, J.,

concurring).

The First Amendment also applies with particular force in

traditional public fora, which are “used for public assembly and

debate.” Frisby v. Schultz, 487 U.S. 474, 480 (1988).

“Sidewalks, like streets and parks, are places whose title has

immemorially been held in trust for the use of the public. As

such, they occupy a privileged position in the hierarchy of first

amendment jurisprudence.” White House Vigil for the ERA

Comm. v. Clark, 746 F.2d 1518, 1526–27 (D.C. Cir. 1984)

(cleaned up). “[M]embers of the public retain strong free

speech rights when they venture into public streets and parks.”

Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009). In

a public forum, content-based regulations receive strict

scrutiny, and government regulation on the basis of viewpoint

is prohibited. Minn. Voters All. v. Mansky, 138 S. Ct. 1876,

1885 (2018).

It is fundamental to our free speech rights that the

government cannot pick and choose between speakers, not

when regulating and not when enforcing the laws. As the

Supreme Court has stated, “[g]ranting waivers to favored

speakers (or, more precisely, denying them to disfavored

speakers) would of course be unconstitutional.” Thomas, 534

U.S. at 325. This circuit has recognized, for instance, that a

viewpoint discrimination claim may arise when a plaintiff

22

alleges that he was “prevented from speaking … while

someone espousing another viewpoint was … permitted to do

so.” Zukerman, 961 F.3d at 446 (quoting McCullen v. Coakley,

573 U.S. 464, 485 n.4 (2014)). In Zukerman, an individual

sought to make a custom postage stamp with a message about

campaign finance laws, but was denied under a postal service

policy prohibiting “political” designs. Id. at 435, 438. The

plaintiff’s challenge concerned, in part, selective enforcement

of the policy—other stamps with political messages had been

printed. Id. at 435. We held such “allegations pass the most

basic … test for viewpoint discrimination,” namely that “the

government has singled out a subset of messages for disfavor

based on the views expressed.” Id. at 446 (cleaned up).

We have similarly emphasized “the government has no

authority to license one side to fight freestyle, while forbidding

the other to fight at all.” Mahoney v. Babbitt, 105 F.3d 1452,

1454 (D.C. Cir. 1997). In Mahoney, a small pro-life group

sought to picket during President Clinton’s second inaugural

parade to protest the administration’s abortion policies. Id. at

1453. The National Park Service revoked the pro-life group’s

permit to assemble, and the group raised a First Amendment

challenge to the unequal enforcement of the permit

requirements. Id. at 1455. The constitutionality of the facially

neutral permitting regulations was not at issue, only the

selective enforcement of those regulations against the

particular viewpoint of the protesters. See id. at 1453, 1455. We

emphasized that “the government cannot exclude from a public

gathering in a public forum on no other basis those citizens

whose views it fears or dislikes or prevent their peaceful

expression of those views.” Id. at 1459.

The government may not enforce the laws in a manner that

picks winners and losers in public debates. It would undermine

the First Amendment’s protections for free speech if the

23

government could enact a content-neutral law and then

discriminate against disfavored viewpoints under the cover of

prosecutorial discretion. See Hoye v. City of Oakland, 653 F.3d

835, 854 (9th Cir. 2011) (recognizing the importance of free

speech selective enforcement claims lest First Amendment

guarantees become “an empty formality”). Neutral regulations

may reasonably limit the time, place, and manner of speech,

but such regulations cannot be enforced based on the content

or viewpoint of speech.

B.

Applying this legal framework, we conclude the

Foundation has plausibly alleged the District abridged its

members’ First Amendment rights by enforcing the

defacement ordinance on the basis of the content and viewpoint

of their speech. In particular, the District permitted individuals

expressing the “Black Lives Matter” message to violate the

defacement ordinance, as evidenced by the widespread

painting, graffiti, and other defacement on public sidewalks,

streets, and buildings, and on private property. By making no

arrests, the police effectively exempted advocates of the “Black

Lives Matter” message from the requirements of the ordinance.

In contrast, the police showed up in force to the Foundation’s

small rally and arrested individuals who chalked “Black Pre-

Born Lives Matter” on the sidewalk.

The District’s unequal enforcement plausibly turned on

viewpoint and occurred in a public forum. First, both

messages—“Black Lives Matter” and “Black Pre-Born Lives

Matter”—are political speech. Allowing the expression of one

message while silencing another is quintessential viewpoint

discrimination. See Rosenberger, 515 U.S. at 831 (“It is …

objectionable to exclude … one … political, economic, or

social viewpoint.”); Matal v. Tam, 582 U.S. 218, 243 (2017)

24

(plurality opinion) (“Our cases use the term ‘viewpoint’

discrimination in a broad sense.”). The District plausibly

engaged in viewpoint discrimination by excluding the pro-life

perspective from the public square.

Second, it is undisputed that the Foundation’s speech took

place on a public sidewalk, a traditional public forum. The

police arrested the Foundation’s members when they chalked

their message on the sidewalk, while allowing other speakers

to mark their messages on sidewalks and other public places.

The District may regulate against defacement of public

property; however, it may not enforce its regulation in a

manner that discriminates on the basis of viewpoint.

We also emphasize the District has not attempted to

support dismissal at this stage by offering an affirmative

defense to the Foundation’s allegations that the defacement

ordinance was selectively enforced in violation of the First

Amendment. See Kim v. United States, 632 F.3d 713, 719 (D.C.

Cir. 2011) (“[A] complaint may be subject to dismissal under

Rule 12(b)(6) when an affirmative defense … appears on its

face.”) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)). We

do not question the District’s interest in prohibiting defacement

of public and private property. The District, however, has

suggested no interest, compelling or otherwise, to justify

favoring the “Black Lives Matter” message over the “Black

Pre-Born Lives Matter” message when enforcing the

ordinance.

The government may not play favorites in a public

forum—permitting some messages and prohibiting others. We

conclude the Foundation has plausibly alleged the District’s

selective enforcement of the defacement ordinance constituted

viewpoint discrimination in a public forum in violation of the

First Amendment.

25

C.

The District does not substantially contest the First

Amendment analysis set forth above. Instead, the District

maintains the Foundation’s selective enforcement claim must

be assessed under the equal protection guarantee of the Fifth

Amendment. The District maintains that, in the context of

selective enforcement, First Amendment and equal protection

standards are essentially the same and that under either

framework the Foundation must plausibly allege intentional

discrimination. The District’s arguments are at odds with

Supreme Court and circuit precedent, which recognize that a

plaintiff may bring a selective enforcement claim under the

First Amendment for a violation of free speech rights. Such

claims are distinct from equal protection claims and do not

require a plaintiff to demonstrate intentional discrimination.

1.

The Supreme Court has recognized that selective

enforcement of a content-neutral law may violate the First

Amendment.7 See, e.g., Wayte, 470 U.S. at 610; Thomas, 534

U.S. at 325; cf. Masterpiece Cakeshop, Ltd. v. Colo. C.R.

7

We appreciate that our cases have not always clearly delineated the

elements of a free speech selective enforcement claim. For instance,

the district court relied on a passing comment that “[s]elective

enforcement is not, of course, a First Amendment cause of action;

rather, … it lies in a murky corner of equal protection law.” Sanjour

v. EPA, 56 F.3d 85, 92 n.9 (D.C. Cir. 1995) (en banc) (cleaned up);

accord Frederick Douglass Found., 531 F. Supp. 3d at 327. The

observation in Sanjour was dicta, however, as we did not decide the

plaintiffs’ selective enforcement claim. We also explained that a

selective enforcement claim “may involve determining whether [the]

plaintiff was in fact attempting to exercise constitutionally protected

rights, including First Amendment rights.” Sanjour, 56 F.3d at 92

n.9.

26

Comm’n, 138 S. Ct. 1719, 1732 (2018) (“The Commission’s

hostility was inconsistent with the First Amendment’s

guarantee that our laws be applied in a manner that is neutral

toward religion.”). In Wayte, when plaintiffs challenged an

enforcement policy on both First Amendment and equal

protection grounds, the Court addressed the claims separately,

on their own terms. 470 U.S. at 610–14; see also id. at 610

(considering the challenge to the “passive enforcement policy

directly on First Amendment grounds”). As already discussed,

this circuit has recognized the validity of a First Amendment

selective enforcement claim without substantial elaboration.

See, e.g., Zukerman, 961 F.3d at 435; Mahoney, 105 F.3d at

1456. Perhaps little elaboration has been necessary in light of

the well-established principles that the First Amendment

prohibits viewpoint discrimination by the government and that

such prohibition applies to executive action, no less than

legislative action.

Several seminal selective enforcement cases have

involved racial discrimination and the Fourteenth

Amendment’s equal protection guarantee. See, e.g., Yick Wo v.

Hopkins, 118 U.S. 356, 366, 374 (1886) (holding enforcement

of a California ordinance—governing the use of wooden

buildings as laundromats—solely against Chinese owners

violated the Equal Protection Clause). Yet not all selective

enforcement claims are equal protection challenges. In addition

to the cases already cited, numerous decisions of the Supreme

Court and our sister circuits have recognized that selective

enforcement of the laws may run afoul of various specific

constitutional guarantees.8 The First Amendment prohibits

8

See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 n.4 (1986)

(explaining a “speech suppressive motivation or policy on the part of

the District Attorney” could lead to “a claim of selective

prosecution”); McCullen, 573 U.S. at 484 (recognizing “selective

enforcement” of an ordinance “might state a claim of official

27

viewpoint discrimination by the government, and we should

not shoehorn the Foundation’s free speech claim into the equal

protection framework.9 The First Amendment and equal

protection standards are conceptually and doctrinally distinct.

It follows that to make out a First Amendment selective

enforcement claim, the Foundation is not required to allege

discriminatory intent. Viewpoint discrimination violates the

First Amendment, “regardless of the government’s benign

motive … or lack of animus toward the ideas contained in the

regulated speech.” Reed v. Town of Gilbert, 576 U.S. 155, 165

(2015) (cleaned up). “Innocent motives do not eliminate the

danger of censorship.” Id. at 167. The Supreme Court has “long

viewpoint discrimination”); Spence v. Washington, 418 U.S. 405,

414 n.9 (1974) (per curiam) (stating the possibility of “selective

enforcement” of a state statute prohibiting altered U.S. flags);

Cameron v. Johnson, 390 U.S. 611, 622 (1968) (addressing and

rejecting on the merits an argument that an anti-picketing statute was

selectively enforced); Juluke v. Hodel, 811 F.2d 1553, 1561 (D.C.

Cir. 1987) (entertaining a selective enforcement claim under the First

Amendment); Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d

144, 151, 168 (3d Cir. 2002) (holding plaintiffs were likely to

succeed on their Free Exercise claim for selective enforcement of a

facially neutral ordinance); Fla. Transp. Servs. v. Miami-Dade Cnty.,

703 F.3d 1230, 1234–35 (11th Cir. 2012) (finding a dormant

Commerce Clause violation for discriminatory enforcement of a

facially constitutional ordinance).

9

“[L]aws that classify persons in terms of their abilities to exercise

rights that have specific recognition in the first eight Amendments

do not generally arise as equal protection issues. In these instances

the denial of the right to one class of persons is likely to be held a

violation of the specific guarantee without any need to resort to equal

protection analysis.” RONALD D. ROTUNDA & JOHN E. NOWAK,

TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE

§ 18.39 (5th ed. 2013).

28

recognized that even regulations aimed at proper governmental

concerns can restrict unduly the exercise of rights protected by

the First Amendment” and “no evidence of an improper

censorial motive” is necessary to demonstrate a violation.

Simon & Schuster, Inc. v. Members of the N.Y. State Crime

Victims Bd., 502 U.S. 105, 117 (1991) (cleaned up); see also

Turner Broad. Sys. v. FCC, 512 U.S. 622, 642–43 (1994) (“Nor

will the mere assertion of a content-neutral purpose be enough

to save a law which, on its face, discriminates based on

content.”).

Accordingly, we reject the District’s argument that

discriminatory motive is required for a First Amendment

selective enforcement claim. A First Amendment challenge to

speech-infringing enforcement, as with speech-infringing

regulation, requires no allegation of bad motive. See NAACP v.

Button, 371 U.S. 415, 439 (1963) (“In the domain

of … speech … abridgment of such rights, even though

unintended, may inevitably follow from varied forms of

governmental action.”) (cleaned up). A benign purpose does

not defeat a claim that the government has selectively enforced

the laws in violation of the First Amendment.10

10

The District relies on American Freedom Defense Initiative v.

Washington Metropolitan Area Transit Authority, where we required

the plaintiff to show, as evidence of viewpoint discrimination, that

“the Government acted in order to suppress a disfavored view.” 901

F.3d 356, 365 (D.C. Cir. 2018). That case is readily distinguishable

because it involved a particular kind of First Amendment challenge.

The transit authority banned all issue-oriented advertising soon after

the plaintiff sought to run advertisements depicting the Prophet

Muhammad in Metrorail stations and on Metrobus exteriors. Id. at

360. When a ban is facially neutral and enforced neutrally, a showing

of intentional discrimination is required to demonstrate pretext.

29

While a free speech selective enforcement claim does not

require an allegation of invidious purpose, we recognize the

District’s concerns that selective enforcement claims may

impair enforcement efforts in “challenging circumstances” that

require “difficult decisions about allocating limited police

resources and prioritizing public safety.” Such concerns are

mitigated, however, by the reality that selective enforcement

claims will often be difficult to establish. Selective

enforcement claims are cabined by the requirement that a

plaintiff demonstrate he is similarly situated to others against

whom the law was not enforced. See supra Part III. And

liability under section 1983 requires identifying an

unconstitutional government policy or practice. These

requirements allow courts to review unconstitutional selective

enforcement claims without second-guessing decisions based

on prosecutorial discretion.

2.

Our conclusion that a First Amendment selective

enforcement claim is distinct from an equal protection claim is

consistent with decisions from our sister circuits, although the

doctrinal labels have varied.11 For instance, the First Circuit

recognized a claim rooted in “the idea that the law … ha[d]

been enforced selectively in a viewpoint discriminatory way.”

McGuire v. Reilly, 386 F.3d 45, 61 (1st Cir. 2004) (citing

Thomas, 534 U.S. at 325). “The exact claim is that in practice

the government has engaged in viewpoint discrimination by

failing to enforce the statute against … pro-abortion/pro-choice

views … while enforcing the statutory prohibitions against

11

The district court found “other Courts of Appeals are divided over

how to categorize claims in which law enforcement is alleged to have

selectively enforced restrictions on speech-related activities based on

viewpoint.” Likewise, the parties contest the proper categorization of

the claims on appeal, relying on out-of-circuit cases.

30

those in the same position who express anti-abortion/pro-life

views.” Id. at 62. The First Circuit labeled this an “as-applied”

challenge of a special type and explained it was “exactly the

same as a claim that discriminatory enforcement of a statute

has led to viewpoint discrimination.” Id. at 61 n.5. The court

specifically declined to resolve whether a plaintiff must

demonstrate intent to discriminate under the First Amendment.

Id. at 63 (opining that “some showing of intent … probably is

necessary” but not resolving the issue). Instead, the court

concluded that to prevail on a First Amendment selective

enforcement challenge a plaintiff “would need to show ‘a

pattern of unlawful favoritism.’” Id. at 64 (quoting Thomas,

534 U.S. at 325). McGuire does not support the District’s

argument that a necessary element of a First Amendment

selective enforcement claim is proof of “intentional

discrimination based on the content” of the Foundation’s

message.

The Ninth Circuit considered a policy of enforcing a buffer

zone around an abortion clinic with respect to speech that

discouraged clinic access but not enforcing as to speech that

facilitated access. Hoye, 653 F.3d at 840. The court found the

city’s “implementation and enforcement of the Ordinance” was

“indubitably content-based.” Id. at 852. And it recognized that

plaintiffs may raise “challenges to the content-discriminatory

enforcement of content-neutral rules.” Id. at 854. Although the

Ninth Circuit had sometimes classified these claims as equal

protection claims based on free speech protections, the court

maintained that any distinction between its approach and the

“as-applied” approach of the First Circuit was “semantic rather

than substantive.” Id. at 855. For a selective enforcement claim,

a plaintiff must demonstrate the content-based discrimination

was “the result of an intentional policy or practice,” shown “by

extrapolating from a series of enforcement actions.” Id. The

court drew this standard from the custom or policy requirement

31

under Monell. See id. (citing cases applying Monell). In the

end, the Ninth Circuit declined to choose a “doctrinal category”

for the claims because the City had a content-based policy of

enforcement, and “[t]hat policy [was] unconstitutional, no

matter the analytical approach taken.” Id. at 856.

The decisions of the First and Ninth Circuits do not

support the District’s claim that the Foundation must allege

invidious discriminatory intent. For the purpose of the

Foundation’s First Amendment selective enforcement claim,

the District’s motive for discriminating based on viewpoint is

irrelevant.

***

Viewpoint discrimination, whether by legislative

enactment or executive action, violates the First Amendment.

“Once a forum is opened up to assembly or speaking by some

groups, government may not prohibit others from assembling

or speaking.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 96

(1972). We hold the Foundation has plausibly alleged the

elements of a free speech selective enforcement claim. We may

reasonably infer from the Foundation’s complaint, first, that its

members were similarly situated to other protesters who were

not arrested and, second, that the District engaged in viewpoint

discrimination by enforcing the defacement ordinance against

individuals chalking “Black Pre-Born Lives Matter” but not

against individuals painting and chalking “Black Lives

Matter.”

V.

The Foundation, in the alternative, frames its selective

enforcement claim in terms of equal protection. To the extent a

separate equal protection claim for viewpoint discrimination

arises under the Fifth Amendment, the Foundation has failed to

32

allege an essential element—purposeful discrimination.12 Even

taking the facts in the light most favorable to the Foundation,

we find it has not put forward plausible evidence of the

District’s animus.

The Fifth Amendment Due Process Clause has been

understood to include an equal protection component that

applies to the District of Columbia. See Bolling v. Sharpe, 347

U.S. 497, 499 (1954); Dixon v. District of Columbia, 666 F.3d

1337, 1339 (D.C. Cir. 2011). This guarantee of equal protection

includes a prohibition on “selective enforcement of the law”

based on impermissible considerations “such as race.” Whren

v. United States, 517 U.S. 806, 813 (1996). The requirements

for a selective enforcement claim are the same as those under

“ordinary equal protection standards.” Armstrong, 517 U.S. at

465 (cleaned up). The plaintiff must demonstrate that the

decision to enforce “had a discriminatory effect and … was

motivated by a discriminatory purpose.” Id. (cleaned up).

In the context of an equal protection selective enforcement

claim, a plaintiff must show that others similarly situated were

not prosecuted and that the prosecution was motivated by

invidious discrimination. See Wayte, 470 U.S. at 608; Juluke v.

Hodel, 811 F.2d 1553, 1561 (D.C. Cir. 1987) (citing Wayte).

Invidious discrimination means taking an action “because of,

not merely in spite of, its adverse effects upon an identifiable

group.” Iqbal, 556 U.S. at 681 (cleaned up). In other words, for

its equal protection claim, the Foundation must plausibly plead

the District’s enforcement decisions were rooted in “animus”

against the Foundation’s viewpoint. See DHS v. Regents of

Univ. of Cal., 140 S. Ct. 1891, 1915 (2020).

12

As explained in the foregoing Part, we recognize a separate First

Amendment selective enforcement claim that requires no showing of

animus.

33

The kind of evidence offered by the Foundation does not

support an inference of invidious discrimination. First, the

complaint points to Mayor Bowser’s public support of Planned

Parenthood “and its ‘pro-choice’ agenda.” The Foundation

maintains these political positions are “consistent with” an

intention to suppress pro-life speech. But “[w]here a complaint

pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678

(cleaned up). Invidious discrimination “requires more than

intent as volition or intent as awareness of consequences.” Id.

at 676 (cleaned up). The Foundation needs evidence the

District was motivated by the desire to suppress some views

and raise up others. That Mayor Bowser holds a different

political or moral position about abortion than the Foundation

is insufficient to infer discriminatory motive by the District.

Government officials may express a range of political

viewpoints without running afoul of the First Amendment. See

Matal, 582 U.S. at 234.

Second, the Foundation alleges the District singled out and

“targeted the Plaintiffs’ … pro-life beliefs.” The complaint,

however, states that 22 other arrests were made for violations

of the defacement ordinance in the second half of 2020, and the

Foundation does not allege these arrests were also, or

predominantly, against pro-life speech. In fact, the complaint

contains no allegations whatsoever about the specific content

of the speech in these other enforcement actions. These

allegations are insufficient to show pro-life beliefs were

targeted by the District for the purpose of invidious

discrimination. See Armstrong, 517 U.S. at 468. If anything,

the evidence in the complaint suggests the District continued to

enforce the defacement ordinance against a variety of groups.

34

Third, the Foundation argues there is “direct evidence of

discriminatory intent” because the District acted to preserve

some Black Lives Matter protest art. The Foundation claims

“[t]his bid to take ownership of and share certain speech shows

the District’s preference for favored viewpoints and is direct

evidence of discrimination.” But while the First Amendment

prevents unlawful favoritism by the government, it “does not

limit the government as speaker.” PETA v. Gittens, 414 F.3d

23, 28 (D.C. Cir. 2005). We will not infer favoritism for certain

viewpoints from government speech. Choosing to preserve

works of art expressing one viewpoint is not, on its own,

evidence of purposeful discrimination against other

viewpoints.

At bottom, the Foundation alleges the District disagrees

with the Foundation’s pro-life viewpoint—but government

speech does not inevitably give rise to government animus.

Assuming there is an independent viewpoint discrimination

claim under the Fifth Amendment’s equal protection guarantee,

the Foundation has not sufficiently alleged the requisite

discriminatory purpose.

VI.

The Foundation has advanced a predicate First

Amendment selective enforcement violation. To establish the

District’s liability under Monell, the Foundation must also

plausibly allege the violation was pursuant to an official

custom or policy. We hold that it has.

Local governments are responsible only “for their own

illegal acts.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479

(1986). They cannot be held vicariously liable for their

employees’ actions. Connick v. Thompson, 563 U.S. 51, 60

(2011). Therefore, to show a local government has “acted” for

the purposes of section 1983, the Foundation must plausibly

35

allege the enforcement at issue was “pursuant to official

municipal policy.” Monell, 436 U.S. at 691. Official policies

include “the decisions of a government’s lawmakers, the acts

of its policymaking officials, and practices so persistent and

widespread as to practically have the force of law.” Connick,

563 U.S. at 61. Plaintiffs may allege an official policy by

showing the government has failed to respond to a risk that

constitutional rights will be violated “in such a manner as to

show ‘deliberate indifference’ to the risk.” Baker v. District of

Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003). Determining

plausibility is a “context-specific task that requires the

reviewing court to draw on … common sense.” Iqbal, 556 U.S.

at 679.

We may infer that District policymakers were behind the

uniform and unexplained policy exempting individuals

expressing “Black Lives Matter” from enforcement of the

defacement ordinance. The sheer scope of non-enforcement

supports the Foundation’s claim that policymakers promoted

or at least allowed an exemption for a favored viewpoint. The

Black Lives Matter protests in the District were part of an

ongoing, large-scale, national demonstration. People flooded

onto the streets in a protest that included painting and marking

of “Black Lives Matter” messages on public and private

property. Mayor Bowser commissioned a large street mural

proclaiming “Black Lives Matter.” It is certainly plausible that

policymaking officials in the District were aware of the Black

Lives Matter protests and the widespread and ongoing

violations of the defacement ordinance, and were involved in

the ubiquitous non-enforcement of the ordinance against the

many individuals who expressed their message on sidewalks,

streets, and other property. The Foundation also alleges one

officer stated Mayor Bowser effectively opened up the streets

to protest messages.

36

It is also plausible District policymakers were involved in

the continued enforcement of the ordinance against other

groups, including the Foundation. The Foundation sought a

permit from the District and spoke with an officer specifically

about painting a mural on the street. At the same time, the

Foundation sent a letter to Mayor Bowser requesting

permission to paint its message. The police department and the

Chief of Police were copied on the letter. Although neither

Mayor Bowser nor the police department responded to the

letter, the District granted the permit, which was signed by the

Commander of the police department’s Special Operations

Division. And on the day of the event six police cars and a

number of officers were waiting. The police officers informed

the Foundation’s members that if they chalked on the sidewalk,

they would be arrested. Such a coordinated and immediate

police response to the Foundation’s rally could certainly have

been the work of policymakers.

At a minimum, it is plausible at this stage that the District

“knew or should have known of the risk of constitutional

violations” and yet deliberately failed to act. See Baker, 326

F.3d at 1307. The alleged facts “raise a reasonable expectation

that discovery will reveal evidence” either that the Special

Operations Commander is a policymaker or that other

policymakers like the Mayor were involved in exempting

individuals who expressed “Black Lives Matter” messages

from the defacement ordinance and continuing to enforce the

ordinance against speakers of other messages. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 556 (2007).

Furthermore, the Foundation has alleged facts suggesting

the District’s exemption from enforcement for a favored

viewpoint was “persistent and widespread.” See Connick, 563

U.S. at 61. Officers were present during many of the Black

Lives Matter protests. The officers watched as thousands of

37

messages were painted on the streets, sidewalks, and other

public and private property. Yet not a single person was

arrested for numerous and clear violations of the defacement

ordinance. The unvarying non-enforcement, against large and

small acts of defacement, over a period of weeks, was

“persistent and widespread” and so plausibly constituted a

custom or policy for Monell liability. See id.

The District argues there is no evidence of a custom or

practice of enforcing the ordinance “against disfavored

messages” and emphasizes the complaint failed to “allege any

other instances where the speech of anti-abortion or other

religious groups was targeted for enforcement beyond their

own rallies.” But that is not what the Foundation must allege.

To make out a First Amendment violation, it is sufficient the

District had a policy of exempting a favored view while

continuing to enforce the ordinance against everyone else. See

Thomas, 534 U.S. at 325 (“Granting waivers to favored

speakers … would of course be unconstitutional.”). Such an

exemption—even in a single, protracted instance—may be

sufficient to state a claim under Monell. See Pahls v. Thomas,

718 F.3d 1210, 1216 (10th Cir. 2013) (holding a First

Amendment claim can survive summary judgment even when

the government selectively enforced the law on a single day).

We therefore disagree with the district court’s holding that

the Foundation failed to allege a policy of selective

enforcement under Monell. The Foundation has more than

plausibly alleged a “persistent and widespread” District

practice of selective non-enforcement against those who

marked and painted “Black Lives Matter” messages.

VII.

Finally, we say a brief word to clear up confusion

expressed by the district court and the parties about appropriate

38

remedies for a successful selective enforcement claim. The

Foundation seeks a declaratory judgment, actual and nominal

damages, and injunctive relief. A judgment declaring the

District’s selective enforcement of the ordinance violated the

First Amendment and an award of damages, even nominal

damages, might be sufficient to redress the Foundation’s

injuries. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796

(2021).

Some type of injunctive relief may also be appropriate to

redress selective enforcement. The Foundation suggests the

court should grant “permanent injunctive relief against the

Defacement Ordinance as applied to Plaintiffs.” But we reject

the Foundation’s characterization of its claim as an “as-

applied” First Amendment challenge. The District’s

defacement ordinance is not unconstitutional “as applied” to

the Foundation’s pro-life speech because the District may

prohibit the defacement of public and private property with any

and all messages. The constitutional violation alleged here is

the selective enforcement of the ordinance based on the

message of the speakers.

As we have recognized in the selective enforcement

context, courts have discretion to fashion injunctive relief.

Zukerman v. USPS, 64 F.4th 1354, 1365 (D.C. Cir. 2023). Such

relief must be tailored to address any unconstitutional

selectivity, not enforcement altogether. Therefore, the district

court’s concern that the District will end up “awash in paint” is

misplaced. See Frederick Douglass Found., 531 F. Supp. 3d at

345. The District may open up its streets for painting messages

of all viewpoints; and the District may later decide to enforce

its defacement ordinance against all viewpoints. What the

District cannot do consistent with the First Amendment is open

its streets for the painting of some messages and not others. The

39

precise contours of any remedy must be left in the first instance

to the judgment of the district court.

***

The First Amendment prohibits the government from

favoring some speakers over others. Access to public fora must

be open to everyone and to every message on the same terms.

The District may act to prevent the defacement of public

property, but it cannot open up its streets and sidewalks to some

viewpoints and not others. During the summer of 2020, the

District arrested individuals chalking “Black Pre-Born Lives

Matter” on the sidewalk, while making no arrests against the

many individuals marking “Black Lives Matter” on sidewalks,

streets, and other property. The Foundation has plausibly

alleged that its members were similarly situated to individuals

against whom the defacement ordinance was not enforced, and

that the District discriminated on the basis of viewpoint when

enforcing the ordinance. Because the Foundation has failed to

adequately allege animus on the part of the District, however,

its equal protection challenge fails.

For the foregoing reasons, we reverse the dismissal of the

First Amendment free speech claim, affirm dismissal of the

equal protection claim, and remand for further proceedings

consistent with this opinion.

So ordered.

WILKINS, Circuit Judge, concurring in the judgment: I

concur in the result reached by the majority, but I do so by a

slightly different path.

I agree that we should reverse the dismissal of the First

Amendment claim. The government is wrong to suggest, see

Appellee Br. 31-33, that the Foundation cannot properly plead

an as-applied First Amendment violation based on viewpoint

discrimination. See Nat’l Endowment for the Arts v. Finley,

524 U.S. 569, 587 (1998) (acknowledging that even though the

case involved a facial challenge to the grant-making regulation,

a case could arise involving “an as-applied challenge . . . where

the denial of a grant may be shown to be the product of

invidious viewpoint discrimination”). The government

concedes that the complaint alleges the Foundation was denied

a permit to write its message in a public forum. See Appellee

Br. 28. “In a public forum, by definition, all parties have a

constitutional right of access and the state must demonstrate

compelling reasons for restricting access to a single class of

speakers, a single viewpoint, or a single subject.” Perry Educ.

Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 55 (1983).

Here, the Foundation has made specific, non-conclusory

allegations that the defacement statute was enforced against it

in a public forum, while it was not enforced against others

writing competing messages in the same forum during the same

set of protests. In my view, even though the Foundation must

meet the high bar of pleading purposeful discrimination to

prevail on its First Amendment claim, see Ashcroft v. Iqbal,

556 U.S. 662, 676–77 (2009), the high standard is met here. It

is at least plausible that “[w]hen government officials target

speech because of ‘particular views taken by speakers on a

subject,’ viewpoint discrimination is afoot.” Pahls v. Thomas,

718 F.3d 1210, 1230 (10th Cir. 2013) (emphasis in original)

(quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 829 (1995)). See also Wood v. Moss, 572 U.S. 744,

756–57 (2014) (“It is uncontested and uncontestable that

government officials may not exclude from public places

2

persons engaged in peaceful expressive activity solely because

the government actor fears, dislikes, or disagrees with the

views those persons express.”). Therefore, I believe that

alleging viewpoint discrimination in a public forum is

sufficient to state a claim and move forward to discovery and

briefing on the compelling interest and narrowly tailored

aspects of the analysis. See Zukerman v. U.S. Postal Serv., 961

F.3d 431, 446 (D.C. Cir. 2020).

The Fifth Amendment selective prosecution claim is a

different matter. “To establish selective prosecution, the

[plaintiff] must ‘prove that (1) [it] was singled out for

prosecution from among others similarly situated and (2) that

[the] prosecution was improperly motivated, i.e., based on race,

religion or another arbitrary classification.’” Branch Ministries

v. Rossotti, 211 F.3d 137, 144 (D.C. Cir. 2000) (first alteration

added) (quoting United States v. Washington, 705 F.2d 489,

494 (D.C. Cir. 1983)); see also United States v. Mangieri, 694

F.2d 1270, 1273 (D.C. Cir. 1982); Att’y Gen. v. Irish People,

Inc., 684 F.2d 928, 932 (D.C. Cir. 1982). The similarly situated

requirement is an exceedingly high bar to meet. The

Foundation must plead, in a plausible and non-conclusory

fashion, that “their circumstances present no distinguishable

legitimate prosecutorial factors that might justify making

different prosecutorial decisions with respect to them.” See

Branch Ministries, 211 F.3d at 146 (quoting United States v.

Hastings, 126 F.3d 310, 315 (4th Cir. 1997)). Here, one such

distinction appears on the face of the complaint: the

Foundation requested permission to deface the public property,

while those who were not prosecuted did not apply for permits.

J.A. 70–72. The Supreme Court expressly rejected the

selective prosecution claim in Wayte v. United States, on the

basis that persons who reported themselves or who were

reported by others as having broken the law were prosecuted,

while persons who did not report themselves or who were not

3

reported by others were not prosecuted. 470 U.S. 598, 608–09

(1985). Thus, the fact that the Foundation “self reported” its

planned defacement by applying for a permit is a legitimate

prosecutorial factor under Wayte. Similarly, Wayte teaches that

the self reporting is also a distinguishing factor that fatally

undermines the selective prosecution claim. Therefore, the

dismissal of the Fifth Amendment claim is properly affirmed.