Bowser Had 'Black Lives Matter' Painted On A D.C. Street. Now Other Groups Want A Turn

It's a fight over D.C.'s streets, literally.

In the wake of Mayor Muriel Bowser's attention-grabbing painting of the words "Black Lives Matter" along a two-block stretch of 16th Street NW in early June, a pair of conservative groups is now waging a fight to gain the same right to have their messages displayed on city asphalt.

And the fight is not limited to D.C.: a similar street mural in Tulsa could soon be removed after a pro-police group sought to paint its own message on another street, while "Back the Blue" was painted on a street in front of Tampa's police department over the weekend.

The fight started last month, when conservative legal advocacy group Judicial Watch sued D.C. over claims that it hasn't been given the chance to paint its slogan — "Because No One Is Above the Law!" — on a city street. The group says that the city's failure to let it request a permit is a violation of the First Amendment.

In July, an anti-abortion activist painted "Baby Lives Matter" on the street in front of a Planned Parenthood Clinic on Fourth Street NE. (A similar street mural was painted in Salt Lake City in mid-July, and the artist is raising money to paint murals in other cities.) And last weekend, two anti-abortion activists were arrested after attempting to write "Black Pre-Born Lives Matter" in chalk on the sidewalk in front of the same clinic.

That group, Students for Life of America, now says it plans on suing D.C. over the arrests. Kristan Hawkins, the group's president, says that if "Black Lives Matter" can remain painted on a city street, other messages must also be allowed on them.

"She's opened up the streets for public expression from any group," says Hawkins, referring to Bowser. "The mayor doesn't get to choose what speech is allowed on streets and what's not."

That's the same argument Judicial Watch has made in its own lawsuit, which was filed in federal court and asks a judge to require D.C. to give other groups a chance to paint slogans on city streets. (Another group of conservative activists have also sued D.C. over the mural, but under the novel argument that Black Lives Matter is a religion and the mural represents an unconstitutional government endorsement of that religion.)

"We wanted access in a timely way to the streets to put our own message out there," said Tom Fitton, Judicial Watch's president, in a video explaining the lawsuit. "That ['Black Lives Matter'] sign is still there on 16th Street, but Judicial Watch, or frankly anyone else who wants to have an expressive message on the street, can't have access. They obviously don't like our message."

Are the two groups right? Did Bowser's painting of "Black Lives Matter" on 16th Street mean that anyone else should be able to paint their own message on 14th Street, Connecticut Avenue, or any other patch of city-owned asphalt in the city?

Probably not, says Shannon T. O'Connor, an attorney in upstate New York who has taken a professional interest in municipal sign and art regulations. And that's because D.C. had the mural painted on 16th Street — government property — instead of simply opening the streets to let others paint their own messages. (That's what happened in other cities, including in Chicago, which now has two "Black Lives Matter" street murals.)

"When the government is the speaker itself, the First Amendment doesn't apply. The free speech clause of the First Amendment regulates private speech. It doesn't regulate government speech," she says. "And the Supreme Court has held that."

Think of it this way, O'Connor says: governments pick statues and other installations for public places all the time, and they're not compelled by the Constitution to give someone with a different view or opinion a chance to put up a competing piece of art.

If that were the case, O'Connor says, even normal government functions would be bottled up by people demanding a chance to voice their own opinion. "Think about all the issues you would have if a local government or any governmental entity couldn't speak. It couldn't even set up a recycling program," she says, because it would be compelled to give a trash company equal space on government documents to advertise their private trash hauling services.

These are all arguments attorneys for the city made themselves in a motion to dismiss Judicial Watch's lawsuit last week.

"Given that the murals are government speech, [Judicial Watch's] claim that it has been improperly denied a request to paint its own mural fails because the District has not created a forum for expressive speech," they wrote in their filing.

Additionally, they argued, streets are not traditional fora for public expression or art, and it is general assumed that the messages that are communicated on streets — traffic markings, largely — are government speech.

Judicial Watch, for its part, has until later this month to file its own reply to the city's arguments. And it could focus on one addition to the city's mural: the "Defund the police" message that activists painted next to "Black Lives Matter" in early June. That addition was never removed, and the conservative group argues that that's evidence that D.C. streets have in fact become a fora for expressive conduct — and as such, Judicial Watch should have free access to paint its own slogan on a street.

Attorneys for D.C. counter that even though "Defund the police" message was not part of the city's original mural, it should still count as government speech. They equate it to a privately donated statue that's placed in a public park, and cite a Supreme Court where such a statue was found to be government speech.

But how about the anti-abortion activists? In the first incident, the mural was painted without permission on the street in front of the clinic — and quickly removed by city crews. In the second, they used chalk — but on the sidewalk. While Hawkins says that they regularly chalk the sidewalk outside the facility, doing so is technically against the law, and courts have granted governments some latitude to prohibit painting or chalking public property like sidewalks.

Of course, that latitude has to be applied evenly. The government can't immediately erase one message and leave a competing one up. In June, for example, authorities in Selah, Washington declared it a crime to chalk "Black Lives Matter" on a public sidewalk, raising allegations of possible viewpoint discrimination. This recently became an issue in Arlington County, which revamped its own policies on removing chalk from public property to clarify that "under no circumstance shall content of graffiti or [an] unauthorized sign be reason for a delayed response in removal."

Still, Hawkins says that after video of the anti-abortion activists getting arrested for chalking the sidewalk went public, she was "flooded with First Amendment lawyers asking if we wanted pro bono legal help." And she says she's looking to find a team of lawyers to argue that D.C.'s "Black Lives Matter" mural should mean that other groups can similarly paint their messages on city streets.

"We request permission to have the same rights afforded to us," she says.