Wednesday, June 22, 2011
A three-judge panel of the D.C. Circuit ruled Tuesday in Mahoney v. Doe that a preacher had no First Amendment right to protest the President's position on abortion and the anniversary of Roe v. Wade by "chalking" the street in front of 1600 Pennsylvania Avenue.
Reverend Patrick Mahoney sought permission to chalk the street in front of the White House in protest of abortion. The District government denied permission, however, because the planned protest violated the District's "Defacement Statute," which prohibits, among other things, rubbing or covering public property.
Analyzing Mahoney's claim first as an as-applied challenge, the court ruled that the street at 1600 Pennsylvania Avenue is, indeed, a public forum. But it also ruled that the District's law is content neutral, based on a significant governmental interest (keeping its property free of blight), and leaves open ample alternatives for communication. As such, the law doesn't violate the Speech Clause as applied to Mahoney.
The court rejected out-of-hand Mahoney's claim that the law was facially unconstitutional. It wrote that Mahoney didn't even bother to argue (in the spirit of overbreadth) that the law would ever apply in violation of the First Amendment.
The court also rejected Mahoney's claim that the District's denial of permission violated the Religious Freedom Restoration Act.
The ruling is hardly surprising. As Judge Kavanaugh wrote in concurrence:
No one has a First Amendment right to deface government property. No one has a First Amendment right, for example, to spray-pain the Washington Monument or smash the windows of a police car.