Mahoney v. Doe

Decision Date21 June 2011
Docket NumberNo. 09–7131.,09–7131.
PartiesPatrick MAHONEY, Reverend, et al., Appellantsv.John DOE, In his official capacity as a police officer, Metropolitan Police Department, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit


Appeal from the United States District Court for the District of Columbia, (No. 1:09–cv–00105).Carly F. Gammill argued the cause for appellants. With her on the briefs was James Matthew Henderson Sr.Carl J. Schifferle, Assistant Attorney General, Attorney General's Office for the District of Columbia, argued the cause for appellees. With him on the brief were Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence and Marina U. Braswell, Assistant U.S. Attorneys, were on the brief for amicus curiae National Park Service in support of appellees.Before: HENDERSON, BROWN and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Circuit Judge BROWN.Concurring opinion filed by Circuit Judge KAVANAUGH.BROWN, Circuit Judge:

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, 93 S.Ct. 705, 35 L.Ed.2d 147 (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). 1 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....D.C. Code § 22–3312.01.

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, 109 S.Ct. 3028, 106 L.Ed.2d 388 (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, 105 S.Ct. 3439, 87 L.Ed.2d 567 (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 Defacement Statute bears a likeness to more conventional licensing schemes. Thus, enforcement of the Defacement Statute will not always implicate the First Amendment.

But here, the parties agree the creation of words or images through chalk is an expressive act. Because the First Amendment “affords protection to symbolic or expressive conduct as well as to actual speech,” Mahoney's proposal clearly implicates the First Amendment. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The District's actions, therefore, can be analyzed within the usual First Amendment framework. The gravamen of this appeal is whether the District violated the constitutional guarantee by prohibiting Mahoney from placing his chalked message on the street in front of the White House.


[T]he extent of scrutiny given to a regulation of speech—in effect, how we examine the directness with which it promotes the government's goals and the degree to which it burdens speech—depends on whether the regulation applies in a public or nonpublic forum.” Boardley v. United States Dep't of Interior, 615 F.3d 508, 514 (D.C.Cir.2010). The type of forum—public, designated public, or nonpublic—determines the extent to which government can control speech. See Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1305–06 (D.C.Cir.2005). “Traditional public fora are those places which by long tradition or by government fiat have been devoted to assembly and debate.” Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. A designated public forum consists of “public property which the state has opened for use by the public as a place for expressive activity.” Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Lastly, “a nonpublic forum is by contradistinction ‘public property which is not by tradition or designation a forum for public communication.’ Boardley, 615 F.3d at 514 (quoting Perry Educ. Ass'n, 460 U.S. at 46, 103 S.Ct. 948).

There is little dispute the street in front of the White House is a public forum. [P]ublic places' historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums.’ United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (citations omitted); see also United States v. Doe, 968 F.2d 86, 89 (D.C.Cir.1992) (referring to the area in front of the White House—Lafayette Park—as a public forum). The District's ability to restrict expressive conduct in a traditional public forum is limited to the enforcement of time, place, and manner regulations, provided the restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’ Grace, 461 U.S. at 177, 103 S.Ct. 1702 (...

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