Appeal from the United States District Court for the District of Columbia (No. 1:09-cv-00105)
The opinion of the court was delivered by: Brown, Circuit Judge:
Argued September 21, 2010
Before: HENDERSON, BROWN and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge KAVANAUGH.
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.
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).
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").*fn1 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 . . .
Mahoney responded by demanding the MPD reverse its position and provide a "written assurance POST HASTE" authorizing his chalking demonstration. In addition, 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 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.
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).
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 primarily destructive and only secondarily expressive. Moreover, because prohibited activities may be permitted with the land owner's consent, the ...