Sidewalk chalk messages at White House not protected

Tuesday, June 21, 2011

There is no absolute constitutional right to write chalk messages on the sidewalk as a means of political protest, a federal appeals court ruled today.

Rev. Patrick Mahoney had contended that a District of Columbia statute unfairly limited his First Amendment rights to draw a protest message in chalk on the pedestrian portion of Pennsylvania Avenue in front of the White House in 2009. That stretch of Pennsylvania Avenue has been closed to vehicles for several years for security reasons.

The appeals court, balancing Mahoney’s right to freedom of speech and petition versus a government duty to prevent defacement of public property, upheld a lower court ruling approving the chalk ban as long as it was “content-neutral.”

The District of Columbia government argued that the 1600 block of Pennsylvania Avenue is not a public forum when used as a “writing tablet.” There was no indication that officials disapproved of Mahoney’s message, just his method, the court said.

The U.S. Court of Appeals for the District of Columbia Circuit said Mahoney and others in his protest group were “free to announce any ‘verbal’ message … (and) could depict visual messages on signs, banners, and leaflets.” It said that “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.”

The appeals court once again affirmed that the sidewalk area outside the White House is indeed a “public forum” where protesters and others may gather and voice their concerns. However, it said, “When “‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”

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