Judge Boasberg again denies pro-life groups a jury trial on free speech

Chief Justice James Boasberg is disappointed… and he’s not alone. A D.C. federal judge recently reportedly complained that a D.C. appeals court had ordered him to reconsider a case regarding whether the D.C. government imposed biased enforcement against political graffiti. Conversely, the plaintiffs were equally disturbed by what they saw as Boasberg’s bias after he responded by once again dismissing their claims without trial.

Boasberg banned pro-life groups from accessing the jury for a second time after members were arrested for writing “Black Lives Matter” in sidewalk chalk while Black Lives Matter signs were left untouched.

I have previously written about the resulting formation “Boasberg’s LawCases in which the judge increasingly takes a broad view and is not dependent on his own authority. Recently, Boasberg was found to have “abused his discretion” by twice finding the Trump administration in contempt of court for failing to reverse deportation flights.

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My disagreements with Boasberg are not on fundamental issues, but rather on the court’s rejection of fundamental limits within its jurisdiction. While Boasberg chastised President Donald Trump for exceeding his authority, he was rebuffed for exceeding his own authority.

In the previous case, Boasberg rejected grand jury subpoenas in the investigation of Fed Chairman Jerome Powell. I have been critical of this investigation, but Boasberg’s refusal to allow the subpoenas to be enforced was based on an opinion filled with open hostility toward Trump, questionable sources, and biased observations.

I have similar reservations about this latest incident. During Black Lives Matter protests in 2020, streets in Washington were covered in BLM graffiti, and police watched as protesters wrote slogans and slurs on stores, streets, and sidewalks. The government even had a huge mural of the message painted on a street near the White House.

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But when the Frederick Douglass Foundation and the Life Students of America wrote the pro-life version of the slogan, they were immediately arrested and the chalk protest was removed.

The D.C. Circuit’s reversal of the Boasberg case was a major victory for free speech. Boasberg had applied the wrong standard to end the case, arguing that the group could not challenge selective enforcement of the law. In reaching this conclusion, Boasberg applied the wrong standard and bore the heavy burden of proving that the city engaged in “poor enforcement.” While this standard has been correctly used to deny the claim to equal protection, it is not a standard for fighting for free speech.

The court did not hide its dissatisfaction with Boasberg’s decision to reject the First Amendment claim:

“The First Amendment prohibits government discrimination based on viewpoint. ‘Allowing any party…to have a monopoly on the expression of its views…is the antithesis of constitutional protections.’ “The protection of freedom of expression applies not only to legislation but also to the implementation of laws.”

The appeals court sent the case back to Boasberg with the opportunity to apply the correct standard and establish a substantive record before making a decision on the free speech claim.

Boasberg took the case and ruled once again that the groups would not be allowed to be prosecuted. The new dismissal was made despite the standard that the court, in seeking such a dismissal before trial, must acknowledge all material facts in favor of the non-moving party, or in this case, the pro-life and pro-free speech plaintiffs.

Boasberg denied the actual claim that they were in a “similar position” as BLM protesters. Plaintiffs presented discovery results at this point, but Boasberg denied the claim based on his subjective view of the evidence.

While Boasberg chastised President Donald Trump for exceeding his authority, he was rebuffed for exceeding his own authority.

They have now appealed to the appeals court again to challenge the decision.

Some of Boasberg’s factual findings are confusing. For example, the groups argue that MPD officers “did not even indicate that they witnessed any specific tampering during the process.” [Black Lives Matter] However, the groups presented evidence such as body camera video of police officers tracking a protester spray-painted with “I can’t breathe” on the street near the White House two weeks after pro-life protesters were arrested. They presented other video evidence of protesters outside the Justice Department watching officers spray-painting BLM messages.

They also presented what they claimed was guidance from Deputy Chief Jeffery Carroll, who is in charge of the Metropolitan Police Department’s Special Operations Unit, on different treatment of graffiti.

Carroll reportedly admitted to being “present” at BLM protests that involved “defacing” public and private property, and Lt. Jason Bagshaw also admitted to seeing defacement “associated” with BLM protests.

This does not mean that a jury would decide for these plaintiffs; Rather, it means that once a credible and supported argument is made by the plaintiffs, the court cannot substitute its own judgment for the jury.

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Boasberg explained that no such reliable evidence has been presented. The fact is that a reasonable jury could conclude that there was disparate treatment in applying these laws based on the content of the conversation.

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Prejudicial application of laws to suppress speech is a common reality in other countries where courts allow such selective sanctions. In countries such as Iran and China, no level of evidence is sufficient to overcome the bias of courts in favoring one side.

Judge Boasberg has had a distinguished career and it is being ruined by the lack of restraint in these decisions. Again, I believe the judge was on solid ground in some of these conflicts, including criticizing the use of “excessive and disrespectful” language in the proceedings and demanding compliance with his orders. But while Chief Justice Boasberg described the president’s assertion of broad authority as “deeply frightening,” the same could be said of a judge who uses his own judgment over juries and ignores legal standards for disadvantaged groups. “The Unfinished Story of the American Revolution.”

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