Frederick Douglass Foundation, Inc. v. DC

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 28, 2022            Decided August 15, 2023

                         No. 21-7108

      FREDERICK DOUGLASS FOUNDATION, INC., ET AL.,
                     APPELLANTS

                              v.

                   DISTRICT OF COLUMBIA,
                         APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:20-cv-03346)



     Erin M. Hawley argued the cause for appellants. With her
on the briefs were John J. Bursch, Kevin H. Theriot, and Jacob
P. Warner.

   Samuel J. Salario, Jr. was on the brief for amicus curiae
Americans United for Life in support of appellants.

    Jacob L. Phillips was on the brief for amicus curiae The
Susan B. Anthony List in support of appellants.

    Carl J. Schifferle, Deputy Solicitor General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellee. With him on the brief were Karl A. Racine,
                               2
Attorney General, Caroline S. Van Zile, Solicitor General, and
Ashwin P. Phatak, Principal Deputy Solicitor General.

    Before: WILKINS, RAO and CHILDS, Circuit Judges.

    Opinion for the Court filed by Circuit Judge RAO.

   Opinion concurring in the judgment filed by Circuit Judge
WILKINS.

     RAO, Circuit Judge: The First Amendment prohibits
government discrimination on the basis of viewpoint. “To
permit one side … to have a monopoly in expressing its
views … is the antithesis of constitutional guarantees.” City of
Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm’n,

, 175–76 (1976). The protection for freedom of
speech applies not only to legislation, but also to enforcement
of the laws. This case concerns a constitutional challenge to the
selective enforcement of the District of Columbia’s defacement
ordinance against some viewpoints but not others.

      In the summer of 2020, thousands of protesters flooded the
streets of the District to proclaim “Black Lives Matter.” Over
several weeks, the protesters covered streets, sidewalks, and
storefronts with paint and chalk. The markings were ubiquitous
and in open violation of the District’s defacement ordinance,
yet none of the protesters were arrested. During the same
summer, District police officers arrested two pro-life advocates
in a smaller protest for chalking “Black Pre-Born Lives Matter”
on a public sidewalk.

     The organizers of the smaller protest, the Frederick
Douglass Foundation and Students for Life of America
(collectively “the Foundation”), sued. The Foundation alleged
violations of the First and Fifth Amendments, conceding the
defacement ordinance was facially constitutional, but arguing
                                   3
the District’s one-sided enforcement of the ordinance was not.
The district court dismissed the complaint. Concluding the
First Amendment and equal protection claims were essentially
the same, the district court held the Foundation had failed to
adequately allege discriminatory intent, which the court
considered a necessary element of both claims.

     We affirm the district court’s dismissal of the
Foundation’s equal protection claim because the Foundation
has not plausibly alleged invidious discrimination by District
officials. Discriminatory motive, however, is not an element of
a First Amendment free speech selective enforcement claim.
The First Amendment prohibits discrimination on the basis of
viewpoint irrespective of the government’s motive. We hold
the Foundation has plausibly alleged the District discriminated
on the basis of viewpoint in the selective enforcement of its
defacement ordinance. We therefore reverse the dismissal of
the Foundation’s First Amendment claim and remand for
further proceedings.

                                  I.

     This case is about the District’s alleged discriminatory
enforcement of its defacement ordinance. The ordinance
prohibits “willfully and wantonly … writ[ing], mark[ing],
draw[ing], or paint[ing]” on public or private property, without
the consent of the owner or the public official controlling the
property.1 D.C. CODE § 22–3312.1. The parties agree the

1
  “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 upon; to write, mark, or print
obscene or indecent figures representing obscene or objects upon
[sic]; 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
                                   4
ordinance does not, on its face, violate the First Amendment.
The provision is content- and viewpoint-neutral and serves the
District’s interest in preventing vandalism. Instead, the
Foundation alleges the District discriminated on the basis of
viewpoint by selectively enforcing the ordinance against those
who chalked “Black Pre-Born Lives Matter,” but not against
those who painted, marked, and chalked “Black Lives Matter.”

     At the motion to dismiss stage, we “accept as true all of
the allegations” in the complaint. Ashcroft v. Iqbal, 

 (2009). We recount the facts as set forth by the
Foundation, most of which are not contested by the District.

                                 A.

     George Floyd’s death at the hands of a Minneapolis police
officer in May 2020 sparked a wave of protests across the
country. The District played host to some of the largest and
most sustained of these Black Lives Matter protests, which
addressed the excessive use of police force and other issues of
racial justice. Most of the protests occurred in May and early
June but some scattered events continued until late summer.
District leadership, including Mayor Muriel Bowser, supported
the message of the protests and commissioned a painting of




upon: (1) any property, public or private, building, statue, monument,
office, public passenger vehicle, mass transit equipment or facility,
dwelling or structure of any kind including those in the course of
erection; or (2) the doors, windows, steps, railing, fencing, balconies,
balustrades, stairs, porches, halls, walls, sides of any enclosure
thereof, or any movable property.” D.C. CODE § 22–3312.1.
                                5
“Black Lives Matter” to cover a street for more than a city
block.2




     The District all but abandoned enforcement of the
defacement ordinance during the Black Lives Matter protests,
creating a de facto categorical exemption for individuals who
marked “Black Lives Matter” messages on public and private
property. The complaint offers a number of examples. The day
after Mayor Bowser’s street mural was revealed, protestors
added an equal sign and “Defund the Police,” so the message
read “Black Lives Matter = Defund the Police.”




2
 The District’s “Black Lives Matter” mural was government speech
displayed on government controlled property, and therefore not part
of the alleged violations of the defacement ordinance.
                                 6
     Police officers watched as the alteration took place and did
nothing to stop it. Although the Black Lives Matter advocates
did not seek a permit or otherwise receive consent, they were
neither arrested nor charged under the defacement ordinance.
In fact, the District left the addition in place for months,
eventually removing it in mid-August.

     Black Lives Matter protesters also covered construction
scaffolding outside the Chamber of Commerce with graffiti,
murals, and photographs. Again the protesters were neither
stopped nor arrested for blatant violations of the defacement
ordinance.3 Over weeks and months, many individuals painted
streets, sidewalks, and storefronts with graffiti and chalk
espousing variations on the “Black Lives Matter” message. Not
a single permit was sought, and not one person was punished
for violating the defacement ordinance. For months, the
District allowed many of the Black Lives Matter markings,
paintings, and drawings to remain on public property.




3
 The defacement ordinance applies specifically to construction sites.
See D.C. CODE § 22–3312.1(1) (prohibiting marking on structures
and buildings, “including those in the course of erection”).
                               7
     Also in the summer of 2020, two pro-life organizations
planned a protest. The Frederick Douglass Foundation is a non-
profit education and policy group that advocates for free
markets and limited government. Among other things, the
Frederick Douglass Foundation “acts as a liaison between
black, faith-based organizations” and elected officials, and
seeks to protect “black babies still in the womb.” Students for
Life of America, the nation’s largest pro-life youth
organization, recruits and mobilizes students to help abolish
abortion. These organizations planned a small rally—for less
than 50 supporters—to proclaim “Black Pre-Born Lives
Matter” and paint this message on the streets.

     In the lead up to the pro-life rally, the Foundation applied
for and received a permit to assemble. In a conversation about
the permit, a police officer gave the Foundation verbal
permission to paint its “Black Pre-Born Lives Matter” message
on the street. The officer explained that he believed Mayor
Bowser had effectively opened up the District’s streets for
political markings. The Foundation also sent a letter to Mayor
Bowser asking to paint a mural and declaring it a constitutional
right to do so. Mayor Bowser did not respond.

     When the pro-life advocates arrived for their rally on
August 1, six police cars and many police officers were
waiting. The officers said the advocates could assemble in
accordance with the Foundation’s permit, but if they painted or
chalked their message on the sidewalk, they would be arrested
for violating the defacement ordinance. Two students began to
chalk “Black Pre-Born Lives Matter” on the sidewalk anyway.
Despite the message being written in small, faint letters with
washable chalk, the two students were arrested. The entire
event was caught on video.
                              8




     This was not the only incident. The Foundation planned to
hold another rally on March 27, 2021, to proclaim “Black Pre-
Born Lives Matter” and write their message on the public
street. The Foundation sought a permit and was allowed by the
District to assemble with a bullhorn and a music stand. The
District again denied the Foundation’s request to paint or mark
on the street or sidewalk.

                             B.

    Having failed to secure a permit from the District, the
Foundation—joined by three individual members—sought to
enjoin the District from enforcing the defacement ordinance
during their rally on March 27. Frederick Douglass Found. v.
District of Columbia, 

, 322 (D.D.C. 2021).
The Foundation claimed the vigorous enforcement of the
ordinance against individuals expressing “Black Pre-Born
Lives Matter” and the lack of enforcement against individuals
expressing “Black Lives Matter” violated the Free Speech,
Free Exercise, and Free Association Clauses of the First
                               9
Amendment, the equal protection guarantee of the Fifth
Amendment, and the Religious Freedom Restoration Act
(“RFRA”). 

 at 328–45. The Foundation argued Mayor
Bowser and District officials discriminated against their pro-
life message, as evidenced by Mayor Bowser’s commissioning
of the Black Lives Matter mural and her strong public support
of Planned Parenthood and its pro-choice agenda. The
Foundation claimed the District seemed eager to arrest its
members, pointing to the rapid, coordinated, and
overwhelming response to the small gathering in August 2020.
Because its protest was similarly situated to the Black Lives
Matter protest, the Foundation argued that viewpoint
discrimination was the only explanation for the District’s
disparate treatment.

     The district court declined to enjoin enforcement of the
defacement ordinance at the March 27 protest, concluding the
Foundation was not likely to succeed on the merits of its
constitutional and statutory claims. 

. In response, the
Foundation amended its complaint. The Foundation reiterated
its claims that the District had violated its members’ rights
under the First and Fifth Amendments, and under RFRA, by
allowing individuals to mark “Black Lives Matter” on public
streets and sidewalks, but arresting those who marked “Black
Pre-Born Lives Matter.” The Foundation sought a declaratory
judgment, preliminary and permanent injunctive relief, and
damages under 

.

     The district court granted the District’s motion to dismiss
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The court expressed uncertainty about how
to treat the free speech and equal protection claims in
particular, but ultimately concluded they were “essentially the
same.” Frederick Douglass Found. v. District of Columbia,

, at *4 (D.D.C. Sept. 1, 2021). Moreover,
                                  10
both constitutional claims failed because the Foundation had
not plausibly alleged the District had a discriminatory purpose.
In the alternative, the district court held the Foundation had not
sufficiently alleged the District had a policy of selective
enforcement, as required to establish municipal liability under
Monell v. Department of Social Services, 

 (1978).

     On appeal, the Foundation leaves aside its free exercise,
free association, and RFRA claims, but maintains the district
court erred by dismissing the free speech and equal protection
claims.

                                  II.

     We review de novo the district court’s dismissal for failure
to state a claim. Jackson v. Modly, 

, 767 (D.C. Cir.
2020). To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal,

 (cleaned up). The court must be able to draw a
“reasonable inference that the defendant is liable for the
misconduct alleged.” 

 At this stage, “we construe the
complaint liberally,” granting the Foundation “the benefit of all
inferences that can be derived from the facts alleged.”
Zukerman v. USPS, 

, 436 (D.C. Cir. 2020)
(cleaned up).

     The Foundation alleges the District of Columbia is liable
under 

 for viewpoint discrimination in the
selective enforcement of its defacement ordinance. Section
1983 provides, “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of … the District of
Columbia, subjects, or causes to be subjected,
any … person … to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable.” A municipality or local government, such as the
                               11
District, is a “person” for section 1983 purposes. See Monell,

; Blue v. District of Columbia, 

(D.C. Cir. 2015). Local governments, however, are not liable
for injuries inflicted solely by their employees or agents; the
government must be the “moving force” behind the violation.
Monell, 

. Therefore, to maintain its section 1983
claim, the Foundation must plausibly allege that the District
violated the Constitution and that the violation was the result
of an official custom or policy. 

                               III.

     We begin with the constitutional violation. The
Foundation alleges the District selectively enforced its
defacement ordinance on the basis of viewpoint in violation of
the First and Fifth Amendments. A selective enforcement claim
has two elements: a plaintiff must demonstrate (1) he was
similarly situated in material respects to other individuals
against whom the law was not enforced, and (2) the selective
enforcement infringed a constitutional right. In this Part, we set
forth the similarly situated requirement and assess whether the
Foundation’s allegations are plausible.

                               A.

     Selective enforcement claims require courts to separate
unlawful discrimination from the ordinary and lawful exercise
of prosecutorial discretion. Because the executive cannot
address every violation of the laws, the prosecution (and non-
prosecution) power is a vital aspect of the executive power.
See, e.g., United States v. Nixon, 

 (1974)
(explaining “the Executive Branch has exclusive authority and
absolute discretion to decide whether to prosecute a case”);
McCleskey v. Kemp, 

, 311–12 (1987) (“[T]he
capacity of prosecutorial discretion to provide individualized
justice is firmly entrenched in American law.”) (cleaned up).
                                 12
Prosecutorial discretion lies within the “special province of the
Executive Branch, inasmuch as it is the Executive who is
charged by the Constitution to ‘take Care that the Laws be
faithfully executed.’” Heckler v. Chaney, 

(1985) (quoting U.S. CONST. art. II, § 3); see also Community
for Creative Non-Violence v. Pierce, 

(D.C. Cir. 1986) (same). It follows from these principles that
the “conscious exercise of some selectivity in enforcement is
not in itself a federal constitutional violation.” See Oyler v.
Boles, 

 (1962).

     Because prosecutorial discretion lies within the
executive’s sphere, the exercise of such discretion is not
generally reviewable by the courts. See ICC v. Bhd. of
Locomotive Eng’rs, 

 (1987) (“[T]he refusal
to prosecute cannot be the subject of judicial review.”);
Heckler, 

 (describing “the general unsuitability
for judicial review of agency decisions to refuse
enforcement”). As we have explained, the “Executive’s
charging authority embraces decisions about whether to initiate
charges, whom to prosecute, which charges to bring,” and “[i]t
has long been settled that the Judiciary generally lacks
authority to second-guess those Executive determinations.”4
United States v. Fokker Servs. B.V., 

 (D.C.
Cir. 2016).

    Despite the general presumption against judicial review of
prosecutorial decisions, courts may review selective
enforcement claims to assess whether the executive’s choice of

4
  While these principles have been articulated with respect to the
Article II executive power vested in the President, the Mayor serves
as the chief executive of the District of Columbia and is required to
“take care that the laws be faithfully executed.” D.C. CODE § 1–
301.76; see also id. (“The Mayor of the District of Columbia may
grant pardons.”).
                               13
prosecution targets infringes on constitutional rights. The
executive cannot selectively enforce the law in a way that
violates the Constitution. United States v. Batchelder, 

 (1979) (“Selectivity in the enforcement of criminal
laws is, of course, subject to constitutional constraints.”). And
“although prosecutorial discretion is broad, it is not
unfettered.” Wayte v. United States, 

 (1985)
(cleaned up).

     Because selective enforcement claims risk invading the
“special province of … prosecutorial discretion,” the Supreme
Court has emphasized “that the standard for proving them is
particularly demanding.” Reno v. American-Arab Anti-
Discrimination Comm., 

 (1999). To make out
a selective enforcement claim, the target of enforcement must
displace “the presumption that a prosecutor has acted
lawfully.” 

 This requires a plaintiff to demonstrate he was
singled out for enforcement “from among others similarly
situated.” Branch Ministries v. Rossotti, 

(D.C. Cir. 2000) (cleaned up).

     Individuals “are similarly situated when their
circumstances present no distinguishable legitimate
prosecutorial factors that might justify making different
prosecutorial decisions with respect to them.” 

(cleaned up); see also Att’y Gen. v. Irish People, Inc., 

 (D.C. Cir. 1982) (“Discrimination cannot exist in a
vacuum; it can be found only in the unequal treatment of people
in similar circumstances.”). The “similarly situated
requirement is necessary” to ensure courts are not
“‘interfer[ing] with the course of criminal justice.’” United
States v. Armstrong, 

, 466–67 (1996) (quoting Ah
Sin v. Wittman, 

 (1905)).
                               14
     The similarly situated requirement strikes the proper
balance between executive discretion and judicial enforcement
of constitutional rights by isolating whether a decision turns on
“unlawful favoritism,” rather than lawful prosecutorial
considerations. See Thomas v. Chi. Park Dist., 

 (2002). In practice, courts must assess whether a plaintiff
is similarly situated to a person against whom the law was not
enforced across the relevant prosecutorial factors. Such factors
may include “the strength of the case, the prosecution’s general
deterrence value, the Government’s enforcement priorities, and
the case’s relationship to the Government’s overall
enforcement plan.” Wayte, 

; see also Beverly
Health & Rehab. Servs. v. Feinstein, 

 (D.C.
Cir. 1996) (stating executive officials may balance
“culpability, evidence, prosecutorial resources, and the public
interest” in enforcement decisions).

      The factors will vary and cannot be reduced to a singular
list. See Hu v. City of New York, 

 (2d Cir. 2019).
Determining whether a plaintiff is similarly situated to those
not prosecuted will be a fact-intensive and case-specific
comparative inquiry.

                               B.

     The Foundation has plausibly alleged its members were
similarly situated to the Black Lives Matter advocates.
Accepting the Foundation’s facts as true, there are salient
similarities between the actions of the two groups. To begin
with, both groups gathered about matters of public concern and
sought to disseminate a political message, in one instance that
“Black Lives Matter,” and in the other that “Black Pre-Born
Lives Matter.” The locations of the gatherings were also the
same: namely public streets and sidewalks in the District. And
the events were proximate in time, held during the summer of
                              15
2020 when public attention focused on the problems of racial
justice and police violence against black Americans. Many
Black Lives Matter protests occurred in May and June, but at
least one event occurred as late as August 16. The Foundation
held its first rally between these dates, on August 1.

     There was also strong evidence that both groups violated
the defacement ordinance. Black Lives Matter advocates
painted streets, sidewalks, and storefronts with messages such
as “Protect Black Youth,” “Our Streets,” and “Abolish the
Police.” The complaint includes photographs of the
conspicuous defacements. Similarly, the Foundation sought to
chalk the “Black Pre-Born Lives Matter” message
conspicuously on a public sidewalk. Police officers were
present and witnessed defacement by both groups. For
example, officers stood by and watched as the “Defund the
Police” message was added to the District’s Black Lives Matter
street painting. Both groups violated the defacement ordinance
by “writ[ing], mark[ing], draw[ing], or paint[ing]” on public
property without consent, D.C. CODE § 22–3312.1, and the
District was well aware of the violations.

     Finally, the District’s differential response fails to
correspond with the culpability of the two groups or the general
deterrence value of enforcement against them. The
Foundation’s members managed to write a single, small pro-
life message in washable chalk before being arrested for
violating the defacement ordinance. By contrast, for weeks,
individuals participating in the Black Lives Matter protests
painted their messages on public streets and sidewalks, as well
as private property. And yet allegedly no arrests were made for
defacement that included the “Black Lives Matter” message.
This lopsided prosecutorial response—several arrests for
small, chalked pro-life messages and no arrests for widespread
“Black Lives Matter” messages—does not comport with the
                                16
deterrence value or culpability associated with the number of
protesters and the scope of defacement, suggesting improper
selective enforcement.

     We find the Foundation has plausibly alleged its members
were similarly situated to individuals expressing “Black Lives
Matter” across a range of relevant prosecutorial factors,
including the strength of the case, available evidence,
culpability, and the resources required to obtain a conviction.

                                C.

     The District argues it is not plausible that individuals at the
Foundation’s small rally were similarly situated to individuals
at the Black Lives Matter protests. First, the District maintains
the Black Lives Matter protests were much larger, involving
tens of thousands of people flooding the streets of downtown
Washington. In light of the intensity and scale of the protests,
the District was concerned that making arrests for defacement
would drain police resources and distract officers from other
priorities, such as ensuring public safety and addressing
widespread looting and property damage.

     We do not doubt these are legitimate prosecutorial factors
that will be part of the merits assessment of whether the
Foundation has demonstrated its members were similarly
situated. Nonetheless, at the motion to dismiss stage, the
Foundation’s allegations allow us to reasonably infer that its
protesters were similarly situated to at least some of the Black
Lives Matter protesters.

     The comparison is not only between the Foundation’s
single, small rally and the large Black Lives Matter protests
that occurred over weeks. Rather, we consider whether the
plaintiffs were similarly situated to any individuals against
whom the defacement ordinance was not enforced. The
                               17
complaint alleges that individuals violated the defacement
ordinance during Black Lives Matter protests that varied in size
and intensity. Even assuming the District is correct—and
defacement by individuals at the largest Black Lives Matter
protests presented distinct enforcement challenges—the
complaint includes allegations of non-enforcement at smaller
and more discrete Black Lives Matter events that are not so
easily distinguished. For example, on August 16, a smaller
Black Lives Matter event, “Reclaim DC,” called for individuals
to once again “create art in all forms” on H Street. There was
no enforcement of the defacement ordinance even at these
smaller events. Given the scope of the Black Lives Matter
protests, the extent of graffiti around the city, and the lack of
enforcement by District police, we can readily infer that the
Foundation’s members were at times similarly situated to
Black Lives Matter proponents.

     Nor can the District rely on the fact that the Foundation
gave “advance notice” of its defacement by requesting a
permit, unlike the Black Lives Matter advocates. The District
does not deny that officers were present at the Black Lives
Matter protests, that vandalism and protest art were ubiquitous,
and that the protests were long running. “Advance notice” of
defacement does not distinguish the speakers. The officers
were equally aware and could anticipate that both the
Foundation’s and the Black Lives Matter events would include
defacement of public property with political speech. In fact,
one officer allegedly stated that Mayor Bowser had “opened
Pandora’s Box” with her response to the Black Lives Matter
protests and made it legal to paint on the streets. In such
circumstances, the request for a permit does not undermine the
Foundation’s selective enforcement allegations.5

5
  The Supreme Court’s decision in Wayte also does not foreclose or
render implausible the Foundation’s claims. Wayte involved a draft
                                  18
                                 ***

     Selective enforcement claims must clear a high hurdle.
Because the lawful exercise of prosecutorial discretion does not
violate the Constitution, disparate enforcement of a neutral
ordinance based on viewpoint is unlawful only when the
prosecutorial factors are similar, and “unlawful favoritism”
remains the predominant explanation for the government’s
targets. See Thomas, 

. The Foundation has
plausibly alleged that when chalking the “Black Pre-Born
Lives Matter” message, its advocates were similarly situated to
advocates who painted and marked the “Black Lives Matter”
message.

                                  IV.

     The second element of a selective enforcement claim is the
infringement of a constitutional right. The Foundation alleges

dodger who wrote several letters to the government proclaiming his
refusal to register for the draft. 470 U.S. at 601. The Supreme Court
upheld the government’s passive enforcement policy of prosecuting
only those who self-reported their draft-dodger status or were
reported by others. Id. at 610. Relying on Wayte, the District
maintains it properly enforced the defacement ordinance against the
Foundation based on self-reporting. But the District’s comparison is
inapposite. In Wayte, locating other draft dodgers was “difficult and
costly.” Id. at 612. Here, the officers were present and watching the
defacement of property with “Black Lives Matter” messages. Unlike
in Wayte, there was no legitimate prosecutorial reason to treat self-
reporting differently in this case. Moreover, in resolving the First
Amendment claim in Wayte, the Court did not rely on the similarly
situated requirement, but instead on the strong national security
interest in enforcing the draft. Id. at 611. The District has offered no
compelling government interest in selectively enforcing the
defacement ordinance against individuals writing small pro-life
messages in washable chalk.
                                  19
the District’s selective enforcement of the defacement
ordinance violated the First and Fifth Amendments. We begin
with the First Amendment claim.

                                  A.

     The Foundation maintains the District engaged in
viewpoint discrimination by selectively enforcing the
defacement ordinance. The gravamen of the complaint is that
District police consistently declined to enforce the defacement
ordinance against individuals who expressed “Black Lives
Matter” messages through graffiti, painting, and chalking,
while vigorously enforcing the ordinance against individuals
chalking the “Black Pre-Born Lives Matter” message. The
Foundation recognizes the facial constitutionality of the
ordinance as a neutral time, place, or manner restriction, but
maintains the selective enforcement of the ordinance based on
the content and viewpoint of speech violates the First
Amendment. The precise doctrinal label for this type of claim
has generated some confusion, which we address below. See
infra Part C. The legal principles, however, are relatively
straightforward.

    The First Amendment provides that “Congress shall make
no law … abridging the freedom of speech.” U.S. CONST.
amend. I. While the Amendment refers to Congress, its
prohibition against infringements on free speech applies
equally to executive actions.6 As the Supreme Court has

6
  See, e.g., Nieves v. Bartlett, 

 (2019) (First
Amendment retaliation claim against two police officers who
arrested petitioner for disorderly conduct and resisting arrest);
Hartman v. Moore, 

 (2006) (Bivens action
against postal inspectors for inducing a prosecution in retaliation for
speech); cf. Shrum v. City of Coweta, 

 (10th Cir.
2006) (McConnell, J.) (holding “the First Amendment applies to
                                  20
recognized, “[t]he pervasive restraint on freedom of discussion
by the practice of the authorities under [a] statute is not any less
effective than a statute expressly permitting such selective
enforcement.” Cox v. Louisiana, 

 (1965). The
First Amendment protects against executive infringements on
free speech and was directed at the “core abuse” of licensing
laws that granted broad discretion to enforce vague legislative
schemes. Thomas, 

; see also James Madison,
Report of 1799, in THE VIRGINIA REPORT OF 1799–1800 &
VIRGINIA RESOLUTIONS OF DECEMBER 21, 1798, at 189, 220
(1850) (discussing freedom of the press under the common law
and arguing the First Amendment secures rights “against
legislative, as well as against executive ambition”); Jud
Campbell, Natural Rights and the First Amendment, 127 YALE
L.J. 246, 260 (2017) (explaining the Founders especially prized
“the common-law rule against press licensing”). Prosecutorial
decisions, like other government actions, cannot turn on the
exercise of free speech rights. Wayte, 

.

     Specifically, selective enforcement of a neutral and
facially constitutional law may run afoul of the First
Amendment if the government’s prosecutorial choices turn on
the content or viewpoint of speech. It is well established the
government “may not regulate speech based on its substantive
content or the message it conveys.” Rosenberger v. Rector &
Visitors of the Univ. of Va., 

 (1995). Thus,
“[c]ontent-based regulations are presumptively invalid.”
R. A. V. v. City of St. Paul, 

 (1992).
Restrictions based on viewpoint are especially invidious;
viewpoint discrimination is “poison.” Iancu v. Brunetti, 

 (2019) (Alito, J., concurring); see also


exercises of executive authority no less than it does to the passage of
legislation,” a principle that the Supreme Court has “assumed on
countless occasions”).
                               21
Rosenberger, 

. It is antithetical to a free society
for the government to give “one side of a debatable public
question an advantage in expressing its views to the people.”
First Nat’l Bank of Bos. v. Bellotti, 

 (1978).
“[G]overnment favoritism in public debate is so pernicious to
liberty and democratic decisionmaking” that viewpoint
discrimination will almost always be “rendered
unconstitutional.” Archdiocese of Wash. v. Wash. Metro. Area
Transit Auth., 

 (D.C. Cir. 2018) (Wilkins, J.,
concurring).

     The First Amendment also applies with particular force in
traditional public fora, which are “used for public assembly and
debate.” Frisby v. Schultz, 

 (1988).
“Sidewalks, like streets and parks, are places whose title has
immemorially been held in trust for the use of the public. As
such, they occupy a privileged position in the hierarchy of first
amendment jurisprudence.” White House Vigil for the ERA
Comm. v. Clark, 

, 1526–27 (D.C. Cir. 1984)
(cleaned up). “[M]embers of the public retain strong free
speech rights when they venture into public streets and parks.”
Pleasant Grove City v. Summum, 

 (2009). In
a public forum, content-based regulations receive strict
scrutiny, and government regulation on the basis of viewpoint
is prohibited. Minn. Voters All. v. Mansky, 

 (2018).

    It is fundamental to our free speech rights that the
government cannot pick and choose between speakers, not
when regulating and not when enforcing the laws. As the
Supreme Court has stated, “[g]ranting waivers to favored
speakers (or, more precisely, denying them to disfavored
speakers) would of course be unconstitutional.” Thomas, 

. This circuit has recognized, for instance, that a
viewpoint discrimination claim may arise when a plaintiff
                               22
alleges that he was “prevented from speaking … while
someone espousing another viewpoint was … permitted to do
so.” Zukerman, 961 F.3d at 446 (quoting McCullen v. Coakley,

, 485 n.4 (2014)). In Zukerman, an individual
sought to make a custom postage stamp with a message about
campaign finance laws, but was denied under a postal service
policy prohibiting “political” designs. 

. The
plaintiff’s challenge concerned, in part, selective enforcement
of the policy—other stamps with political messages had been
printed. 

. We held such “allegations pass the most
basic … test for viewpoint discrimination,” namely that “the
government has singled out a subset of messages for disfavor
based on the views expressed.” 

 (cleaned up).

     We have similarly emphasized “the government has no
authority to license one side to fight freestyle, while forbidding
the other to fight at all.” Mahoney v. Babbitt, 

 (D.C. Cir. 1997). In Mahoney, a small pro-life group
sought to picket during President Clinton’s second inaugural
parade to protest the administration’s abortion policies. 

. The National Park Service revoked the pro-life group’s
permit to assemble, and the group raised a First Amendment
challenge to the unequal enforcement of the permit
requirements. 

. The constitutionality of the facially
neutral permitting regulations was not at issue, only the
selective enforcement of those regulations against the
particular viewpoint of the protesters. See 

. We
emphasized that “the government cannot exclude from a public
gathering in a public forum on no other basis those citizens
whose views it fears or dislikes or prevent their peaceful
expression of those views.” 

.

    The government may not enforce the laws in a manner that
picks winners and losers in public debates. It would undermine
the First Amendment’s protections for free speech if the
                               23
government could enact a content-neutral law and then
discriminate against disfavored viewpoints under the cover of
prosecutorial discretion. See Hoye v. City of Oakland, 

 (9th Cir. 2011) (recognizing the importance of free
speech selective enforcement claims lest First Amendment
guarantees become “an empty formality”). Neutral regulations
may reasonably limit the time, place, and manner of speech,
but such regulations cannot be enforced based on the content
or viewpoint of speech.

                               B.

     Applying this legal framework, we conclude the
Foundation has plausibly alleged the District abridged its
members’ First Amendment rights by enforcing the
defacement ordinance on the basis of the content and viewpoint
of their speech. In particular, the District permitted individuals
expressing the “Black Lives Matter” message to violate the
defacement ordinance, as evidenced by the widespread
painting, graffiti, and other defacement on public sidewalks,
streets, and buildings, and on private property. By making no
arrests, the police effectively exempted advocates of the “Black
Lives Matter” message from the requirements of the ordinance.
In contrast, the police showed up in force to the Foundation’s
small rally and arrested individuals who chalked “Black Pre-
Born Lives Matter” on the sidewalk.

     The District’s unequal enforcement plausibly turned on
viewpoint and occurred in a public forum. First, both
messages—“Black Lives Matter” and “Black Pre-Born Lives
Matter”—are political speech. Allowing the expression of one
message while silencing another is quintessential viewpoint
discrimination. See Rosenberger, 

 (“It is …
objectionable to exclude … one … political, economic, or
social viewpoint.”); Matal v. Tam, 

, 243 (2017)
                               24
(plurality opinion) (“Our cases use the term ‘viewpoint’
discrimination in a broad sense.”). The District plausibly
engaged in viewpoint discrimination by excluding the pro-life
perspective from the public square.

     Second, it is undisputed that the Foundation’s speech took
place on a public sidewalk, a traditional public forum. The
police arrested the Foundation’s members when they chalked
their message on the sidewalk, while allowing other speakers
to mark their messages on sidewalks and other public places.
The District may regulate against defacement of public
property; however, it may not enforce its regulation in a
manner that discriminates on the basis of viewpoint.

     We also emphasize the District has not attempted to
support dismissal at this stage by offering an affirmative
defense to the Foundation’s allegations that the defacement
ordinance was selectively enforced in violation of the First
Amendment. See Kim v. United States, 

 (D.C.
Cir. 2011) (“[A] complaint may be subject to dismissal under
Rule 12(b)(6) when an affirmative defense … appears on its
face.”) (quoting Jones v. Bock, 

 (2007)). We
do not question the District’s interest in prohibiting defacement
of public and private property. The District, however, has
suggested no interest, compelling or otherwise, to justify
favoring the “Black Lives Matter” message over the “Black
Pre-Born Lives Matter” message when enforcing the
ordinance.

     The government may not play favorites in a public
forum—permitting some messages and prohibiting others. We
conclude the Foundation has plausibly alleged the District’s
selective enforcement of the defacement ordinance constituted
viewpoint discrimination in a public forum in violation of the
First Amendment.
                                  25
                                  C.

     The District does not substantially contest the First
Amendment analysis set forth above. Instead, the District
maintains the Foundation’s selective enforcement claim must
be assessed under the equal protection guarantee of the Fifth
Amendment. The District maintains that, in the context of
selective enforcement, First Amendment and equal protection
standards are essentially the same and that under either
framework the Foundation must plausibly allege intentional
discrimination. The District’s arguments are at odds with
Supreme Court and circuit precedent, which recognize that a
plaintiff may bring a selective enforcement claim under the
First Amendment for a violation of free speech rights. Such
claims are distinct from equal protection claims and do not
require a plaintiff to demonstrate intentional discrimination.

                                  1.

    The Supreme Court has recognized that selective
enforcement of a content-neutral law may violate the First
Amendment.7 See, e.g., Wayte, 

; Thomas, 

; cf. Masterpiece Cakeshop, Ltd. v. Colo. C.R.
7
  We appreciate that our cases have not always clearly delineated the
elements of a free speech selective enforcement claim. For instance,
the district court relied on a passing comment that “[s]elective
enforcement is not, of course, a First Amendment cause of action;
rather, … it lies in a murky corner of equal protection law.” Sanjour
v. EPA, 

, 92 n.9 (D.C. Cir. 1995) (en banc) (cleaned up);
accord Frederick Douglass Found., 531 F. Supp. 3d at 327. The
observation in Sanjour was dicta, however, as we did not decide the
plaintiffs’ selective enforcement claim. We also explained that a
selective enforcement claim “may involve determining whether [the]
plaintiff was in fact attempting to exercise constitutionally protected
rights, including First Amendment rights.” Sanjour, 

n.9.
                                 26
Comm’n, 

 (2018) (“The Commission’s
hostility was inconsistent with the First Amendment’s
guarantee that our laws be applied in a manner that is neutral
toward religion.”). In Wayte, when plaintiffs challenged an
enforcement policy on both First Amendment and equal
protection grounds, the Court addressed the claims separately,
on their own terms. 470 U.S. at 610–14; see also id. at 610
(considering the challenge to the “passive enforcement policy
directly on First Amendment grounds”). As already discussed,
this circuit has recognized the validity of a First Amendment
selective enforcement claim without substantial elaboration.
See, e.g., Zukerman, 961 F.3d at 435; Mahoney, 

. Perhaps little elaboration has been necessary in light of
the well-established principles that the First Amendment
prohibits viewpoint discrimination by the government and that
such prohibition applies to executive action, no less than
legislative action.

     Several seminal selective enforcement cases have
involved racial discrimination and the Fourteenth
Amendment’s equal protection guarantee. See, e.g., Yick Wo v.
Hopkins, 

 (1886) (holding enforcement
of a California ordinance—governing the use of wooden
buildings as laundromats—solely against Chinese owners
violated the Equal Protection Clause). Yet not all selective
enforcement claims are equal protection challenges. In addition
to the cases already cited, numerous decisions of the Supreme
Court and our sister circuits have recognized that selective
enforcement of the laws may run afoul of various specific
constitutional guarantees.8 The First Amendment prohibits

8
 See, e.g., Arcara v. Cloud Books, Inc., 

, 707 n.4 (1986)
(explaining a “speech suppressive motivation or policy on the part of
the District Attorney” could lead to “a claim of selective
prosecution”); McCullen, 573 U.S. at 484 (recognizing “selective
enforcement” of an ordinance “might state a claim of official
                                  27
viewpoint discrimination by the government, and we should
not shoehorn the Foundation’s free speech claim into the equal
protection framework.9 The First Amendment and equal
protection standards are conceptually and doctrinally distinct.

     It follows that to make out a First Amendment selective
enforcement claim, the Foundation is not required to allege
discriminatory intent. Viewpoint discrimination violates the
First Amendment, “regardless of the government’s benign
motive … or lack of animus toward the ideas contained in the
regulated speech.” Reed v. Town of Gilbert, 

, 165
(2015) (cleaned up). “Innocent motives do not eliminate the
danger of censorship.” Id. at 167. The Supreme Court has “long

viewpoint discrimination”); Spence v. Washington, 

,
414 n.9 (1974) (per curiam) (stating the possibility of “selective
enforcement” of a state statute prohibiting altered U.S. flags);
Cameron v. Johnson, 

 (1968) (addressing and
rejecting on the merits an argument that an anti-picketing statute was
selectively enforced); Juluke v. Hodel, 

 (D.C.
Cir. 1987) (entertaining a selective enforcement claim under the First
Amendment); Tenafly Eruv Ass’n v. Borough of Tenafly, 

 (3d Cir. 2002) (holding plaintiffs were likely to
succeed on their Free Exercise claim for selective enforcement of a
facially neutral ordinance); Fla. Transp. Servs. v. Miami-Dade Cnty.,

, 1234–35 (11th Cir. 2012) (finding a dormant
Commerce Clause violation for discriminatory enforcement of a
facially constitutional ordinance).
9
  “[L]aws that classify persons in terms of their abilities to exercise
rights that have specific recognition in the first eight Amendments
do not generally arise as equal protection issues. In these instances
the denial of the right to one class of persons is likely to be held a
violation of the specific guarantee without any need to resort to equal
protection analysis.” RONALD D. ROTUNDA & JOHN E. NOWAK,
TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE
§ 18.39 (5th ed. 2013).
                                 28
recognized that even regulations aimed at proper governmental
concerns can restrict unduly the exercise of rights protected by
the First Amendment” and “no evidence of an improper
censorial motive” is necessary to demonstrate a violation.
Simon & Schuster, Inc. v. Members of the N.Y. State Crime
Victims Bd., 

 (1991) (cleaned up); see also
Turner Broad. Sys. v. FCC, 

, 642–43 (1994) (“Nor
will the mere assertion of a content-neutral purpose be enough
to save a law which, on its face, discriminates based on
content.”).

     Accordingly, we reject the District’s argument that
discriminatory motive is required for a First Amendment
selective enforcement claim. A First Amendment challenge to
speech-infringing enforcement, as with speech-infringing
regulation, requires no allegation of bad motive. See NAACP v.
Button, 

 (1963) (“In the domain
of … speech … abridgment of such rights, even though
unintended, may inevitably follow from varied forms of
governmental action.”) (cleaned up). A benign purpose does
not defeat a claim that the government has selectively enforced
the laws in violation of the First Amendment.10


10
   The District relies on American Freedom Defense Initiative v.
Washington Metropolitan Area Transit Authority, where we required
the plaintiff to show, as evidence of viewpoint discrimination, that
“the Government acted in order to suppress a disfavored view.” 

 (D.C. Cir. 2018). That case is readily distinguishable
because it involved a particular kind of First Amendment challenge.
The transit authority banned all issue-oriented advertising soon after
the plaintiff sought to run advertisements depicting the Prophet
Muhammad in Metrorail stations and on Metrobus exteriors. 

. When a ban is facially neutral and enforced neutrally, a showing
of intentional discrimination is required to demonstrate pretext.
                                  29
     While a free speech selective enforcement claim does not
require an allegation of invidious purpose, we recognize the
District’s concerns that selective enforcement claims may
impair enforcement efforts in “challenging circumstances” that
require “difficult decisions about allocating limited police
resources and prioritizing public safety.” Such concerns are
mitigated, however, by the reality that selective enforcement
claims will often be difficult to establish. Selective
enforcement claims are cabined by the requirement that a
plaintiff demonstrate he is similarly situated to others against
whom the law was not enforced. See supra Part III. And
liability under section 1983 requires identifying an
unconstitutional government policy or practice. These
requirements allow courts to review unconstitutional selective
enforcement claims without second-guessing decisions based
on prosecutorial discretion.

                                  2.

      Our conclusion that a First Amendment selective
enforcement claim is distinct from an equal protection claim is
consistent with decisions from our sister circuits, although the
doctrinal labels have varied.11 For instance, the First Circuit
recognized a claim rooted in “the idea that the law … ha[d]
been enforced selectively in a viewpoint discriminatory way.”
McGuire v. Reilly, 

 (1st Cir. 2004) (citing
Thomas, 

). “The exact claim is that in practice
the government has engaged in viewpoint discrimination by
failing to enforce the statute against … pro-abortion/pro-choice
views … while enforcing the statutory prohibitions against

11
  The district court found “other Courts of Appeals are divided over
how to categorize claims in which law enforcement is alleged to have
selectively enforced restrictions on speech-related activities based on
viewpoint.” Likewise, the parties contest the proper categorization of
the claims on appeal, relying on out-of-circuit cases.
                               30
those in the same position who express anti-abortion/pro-life
views.” Id. at 62. The First Circuit labeled this an “as-applied”
challenge of a special type and explained it was “exactly the
same as a claim that discriminatory enforcement of a statute
has led to viewpoint discrimination.” Id. at 61 n.5. The court
specifically declined to resolve whether a plaintiff must
demonstrate intent to discriminate under the First Amendment.
Id. at 63 (opining that “some showing of intent … probably is
necessary” but not resolving the issue). Instead, the court
concluded that to prevail on a First Amendment selective
enforcement challenge a plaintiff “would need to show ‘a
pattern of unlawful favoritism.’” Id. at 64 (quoting Thomas,

). McGuire does not support the District’s
argument that a necessary element of a First Amendment
selective enforcement claim is proof of “intentional
discrimination based on the content” of the Foundation’s
message.

     The Ninth Circuit considered a policy of enforcing a buffer
zone around an abortion clinic with respect to speech that
discouraged clinic access but not enforcing as to speech that
facilitated access. Hoye, 

. The court found the
city’s “implementation and enforcement of the Ordinance” was
“indubitably content-based.” 

. And it recognized that
plaintiffs may raise “challenges to the content-discriminatory
enforcement of content-neutral rules.” 

. Although the
Ninth Circuit had sometimes classified these claims as equal
protection claims based on free speech protections, the court
maintained that any distinction between its approach and the
“as-applied” approach of the First Circuit was “semantic rather
than substantive.” 

. For a selective enforcement claim,
a plaintiff must demonstrate the content-based discrimination
was “the result of an intentional policy or practice,” shown “by
extrapolating from a series of enforcement actions.” 

 The
court drew this standard from the custom or policy requirement
                               31
under Monell. See 

 (citing cases applying Monell). In the
end, the Ninth Circuit declined to choose a “doctrinal category”
for the claims because the City had a content-based policy of
enforcement, and “[t]hat policy [was] unconstitutional, no
matter the analytical approach taken.” 

.

     The decisions of the First and Ninth Circuits do not
support the District’s claim that the Foundation must allege
invidious discriminatory intent. For the purpose of the
Foundation’s First Amendment selective enforcement claim,
the District’s motive for discriminating based on viewpoint is
irrelevant.

                             ***

     Viewpoint discrimination, whether by legislative
enactment or executive action, violates the First Amendment.
“Once a forum is opened up to assembly or speaking by some
groups, government may not prohibit others from assembling
or speaking.” Police Dep’t of Chi. v. Mosley, 

, 96
(1972). We hold the Foundation has plausibly alleged the
elements of a free speech selective enforcement claim. We may
reasonably infer from the Foundation’s complaint, first, that its
members were similarly situated to other protesters who were
not arrested and, second, that the District engaged in viewpoint
discrimination by enforcing the defacement ordinance against
individuals chalking “Black Pre-Born Lives Matter” but not
against individuals painting and chalking “Black Lives
Matter.”

                               V.

     The Foundation, in the alternative, frames its selective
enforcement claim in terms of equal protection. To the extent a
separate equal protection claim for viewpoint discrimination
arises under the Fifth Amendment, the Foundation has failed to
                                32
allege an essential element—purposeful discrimination.12 Even
taking the facts in the light most favorable to the Foundation,
we find it has not put forward plausible evidence of the
District’s animus.

     The Fifth Amendment Due Process Clause has been
understood to include an equal protection component that
applies to the District of Columbia. See Bolling v. Sharpe, 

 (1954); Dixon v. District of Columbia, 

 (D.C. Cir. 2011). This guarantee of equal protection
includes a prohibition on “selective enforcement of the law”
based on impermissible considerations “such as race.” Whren
v. United States, 

 (1996). The requirements
for a selective enforcement claim are the same as those under
“ordinary equal protection standards.” Armstrong, 

 (cleaned up). The plaintiff must demonstrate that the
decision to enforce “had a discriminatory effect and … was
motivated by a discriminatory purpose.” 

 (cleaned up).

     In the context of an equal protection selective enforcement
claim, a plaintiff must show that others similarly situated were
not prosecuted and that the prosecution was motivated by
invidious discrimination. See Wayte, 

; Juluke v.
Hodel, 

 (D.C. Cir. 1987) (citing Wayte).
Invidious discrimination means taking an action “because of,
not merely in spite of, its adverse effects upon an identifiable
group.” Iqbal, 

 (cleaned up). In other words, for
its equal protection claim, the Foundation must plausibly plead
the District’s enforcement decisions were rooted in “animus”
against the Foundation’s viewpoint. See DHS v. Regents of
Univ. of Cal., 

 (2020).


12
  As explained in the foregoing Part, we recognize a separate First
Amendment selective enforcement claim that requires no showing of
animus.
                              33
     The kind of evidence offered by the Foundation does not
support an inference of invidious discrimination. First, the
complaint points to Mayor Bowser’s public support of Planned
Parenthood “and its ‘pro-choice’ agenda.” The Foundation
maintains these political positions are “consistent with” an
intention to suppress pro-life speech. But “[w]here a complaint
pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Iqbal, 

(cleaned up). Invidious discrimination “requires more than
intent as volition or intent as awareness of consequences.” 

 (cleaned up). The Foundation needs evidence the
District was motivated by the desire to suppress some views
and raise up others. That Mayor Bowser holds a different
political or moral position about abortion than the Foundation
is insufficient to infer discriminatory motive by the District.
Government officials may express a range of political
viewpoints without running afoul of the First Amendment. See
Matal, 582 U.S. at 234.

     Second, the Foundation alleges the District singled out and
“targeted the Plaintiffs’ … pro-life beliefs.” The complaint,
however, states that 22 other arrests were made for violations
of the defacement ordinance in the second half of 2020, and the
Foundation does not allege these arrests were also, or
predominantly, against pro-life speech. In fact, the complaint
contains no allegations whatsoever about the specific content
of the speech in these other enforcement actions. These
allegations are insufficient to show pro-life beliefs were
targeted by the District for the purpose of invidious
discrimination. See Armstrong, 

. If anything,
the evidence in the complaint suggests the District continued to
enforce the defacement ordinance against a variety of groups.
                               34
     Third, the Foundation argues there is “direct evidence of
discriminatory intent” because the District acted to preserve
some Black Lives Matter protest art. The Foundation claims
“[t]his bid to take ownership of and share certain speech shows
the District’s preference for favored viewpoints and is direct
evidence of discrimination.” But while the First Amendment
prevents unlawful favoritism by the government, it “does not
limit the government as speaker.” PETA v. Gittens, 

 (D.C. Cir. 2005). We will not infer favoritism for certain
viewpoints from government speech. Choosing to preserve
works of art expressing one viewpoint is not, on its own,
evidence of purposeful discrimination against other
viewpoints.

     At bottom, the Foundation alleges the District disagrees
with the Foundation’s pro-life viewpoint—but government
speech does not inevitably give rise to government animus.
Assuming there is an independent viewpoint discrimination
claim under the Fifth Amendment’s equal protection guarantee,
the Foundation has not sufficiently alleged the requisite
discriminatory purpose.

                              VI.

     The Foundation has advanced a predicate First
Amendment selective enforcement violation. To establish the
District’s liability under Monell, the Foundation must also
plausibly allege the violation was pursuant to an official
custom or policy. We hold that it has.

     Local governments are responsible only “for their own
illegal acts.” Pembaur v. City of Cincinnati, 

(1986). They cannot be held vicariously liable for their
employees’ actions. Connick v. Thompson, 

(2011). Therefore, to show a local government has “acted” for
the purposes of section 1983, the Foundation must plausibly
                               35
allege the enforcement at issue was “pursuant to official
municipal policy.” Monell, 

. Official policies
include “the decisions of a government’s lawmakers, the acts
of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick,

. Plaintiffs may allege an official policy by
showing the government has failed to respond to a risk that
constitutional rights will be violated “in such a manner as to
show ‘deliberate indifference’ to the risk.” Baker v. District of
Columbia, 

 (D.C. Cir. 2003). Determining
plausibility is a “context-specific task that requires the
reviewing court to draw on … common sense.” Iqbal, 

.

     We may infer that District policymakers were behind the
uniform and unexplained policy exempting individuals
expressing “Black Lives Matter” from enforcement of the
defacement ordinance. The sheer scope of non-enforcement
supports the Foundation’s claim that policymakers promoted
or at least allowed an exemption for a favored viewpoint. The
Black Lives Matter protests in the District were part of an
ongoing, large-scale, national demonstration. People flooded
onto the streets in a protest that included painting and marking
of “Black Lives Matter” messages on public and private
property. Mayor Bowser commissioned a large street mural
proclaiming “Black Lives Matter.” It is certainly plausible that
policymaking officials in the District were aware of the Black
Lives Matter protests and the widespread and ongoing
violations of the defacement ordinance, and were involved in
the ubiquitous non-enforcement of the ordinance against the
many individuals who expressed their message on sidewalks,
streets, and other property. The Foundation also alleges one
officer stated Mayor Bowser effectively opened up the streets
to protest messages.
                               36
     It is also plausible District policymakers were involved in
the continued enforcement of the ordinance against other
groups, including the Foundation. The Foundation sought a
permit from the District and spoke with an officer specifically
about painting a mural on the street. At the same time, the
Foundation sent a letter to Mayor Bowser requesting
permission to paint its message. The police department and the
Chief of Police were copied on the letter. Although neither
Mayor Bowser nor the police department responded to the
letter, the District granted the permit, which was signed by the
Commander of the police department’s Special Operations
Division. And on the day of the event six police cars and a
number of officers were waiting. The police officers informed
the Foundation’s members that if they chalked on the sidewalk,
they would be arrested. Such a coordinated and immediate
police response to the Foundation’s rally could certainly have
been the work of policymakers.

     At a minimum, it is plausible at this stage that the District
“knew or should have known of the risk of constitutional
violations” and yet deliberately failed to act. See Baker, 

. The alleged facts “raise a reasonable expectation
that discovery will reveal evidence” either that the Special
Operations Commander is a policymaker or that other
policymakers like the Mayor were involved in exempting
individuals who expressed “Black Lives Matter” messages
from the defacement ordinance and continuing to enforce the
ordinance against speakers of other messages. Bell Atl. Corp.
v. Twombly, 

 (2007).

    Furthermore, the Foundation has alleged facts suggesting
the District’s exemption from enforcement for a favored
viewpoint was “persistent and widespread.” See Connick, 

. Officers were present during many of the Black
Lives Matter protests. The officers watched as thousands of
                               37
messages were painted on the streets, sidewalks, and other
public and private property. Yet not a single person was
arrested for numerous and clear violations of the defacement
ordinance. The unvarying non-enforcement, against large and
small acts of defacement, over a period of weeks, was
“persistent and widespread” and so plausibly constituted a
custom or policy for Monell liability. See 

     The District argues there is no evidence of a custom or
practice of enforcing the ordinance “against disfavored
messages” and emphasizes the complaint failed to “allege any
other instances where the speech of anti-abortion or other
religious groups was targeted for enforcement beyond their
own rallies.” But that is not what the Foundation must allege.
To make out a First Amendment violation, it is sufficient the
District had a policy of exempting a favored view while
continuing to enforce the ordinance against everyone else. See
Thomas, 

 (“Granting waivers to favored
speakers … would of course be unconstitutional.”). Such an
exemption—even in a single, protracted instance—may be
sufficient to state a claim under Monell. See Pahls v. Thomas,

 (10th Cir. 2013) (holding a First
Amendment claim can survive summary judgment even when
the government selectively enforced the law on a single day).

    We therefore disagree with the district court’s holding that
the Foundation failed to allege a policy of selective
enforcement under Monell. The Foundation has more than
plausibly alleged a “persistent and widespread” District
practice of selective non-enforcement against those who
marked and painted “Black Lives Matter” messages.

                              VII.

    Finally, we say a brief word to clear up confusion
expressed by the district court and the parties about appropriate
                               38
remedies for a successful selective enforcement claim. The
Foundation seeks a declaratory judgment, actual and nominal
damages, and injunctive relief. A judgment declaring the
District’s selective enforcement of the ordinance violated the
First Amendment and an award of damages, even nominal
damages, might be sufficient to redress the Foundation’s
injuries. See Uzuegbunam v. Preczewski, 

, 796
(2021).

    Some type of injunctive relief may also be appropriate to
redress selective enforcement. The Foundation suggests the
court should grant “permanent injunctive relief against the
Defacement Ordinance as applied to Plaintiffs.” But we reject
the Foundation’s characterization of its claim as an “as-
applied” First Amendment challenge. The District’s
defacement ordinance is not unconstitutional “as applied” to
the Foundation’s pro-life speech because the District may
prohibit the defacement of public and private property with any
and all messages. The constitutional violation alleged here is
the selective enforcement of the ordinance based on the
message of the speakers.

      As we have recognized in the selective enforcement
context, courts have discretion to fashion injunctive relief.
Zukerman v. USPS, 

, 1365 (D.C. Cir. 2023). Such
relief must be tailored to address any unconstitutional
selectivity, not enforcement altogether. Therefore, the district
court’s concern that the District will end up “awash in paint” is
misplaced. See Frederick Douglass Found., 531 F. Supp. 3d at
345. The District may open up its streets for painting messages
of all viewpoints; and the District may later decide to enforce
its defacement ordinance against all viewpoints. What the
District cannot do consistent with the First Amendment is open
its streets for the painting of some messages and not others. The
                               39
precise contours of any remedy must be left in the first instance
to the judgment of the district court.

                             ***

     The First Amendment prohibits the government from
favoring some speakers over others. Access to public fora must
be open to everyone and to every message on the same terms.
The District may act to prevent the defacement of public
property, but it cannot open up its streets and sidewalks to some
viewpoints and not others. During the summer of 2020, the
District arrested individuals chalking “Black Pre-Born Lives
Matter” on the sidewalk, while making no arrests against the
many individuals marking “Black Lives Matter” on sidewalks,
streets, and other property. The Foundation has plausibly
alleged that its members were similarly situated to individuals
against whom the defacement ordinance was not enforced, and
that the District discriminated on the basis of viewpoint when
enforcing the ordinance. Because the Foundation has failed to
adequately allege animus on the part of the District, however,
its equal protection challenge fails.

     For the foregoing reasons, we reverse the dismissal of the
First Amendment free speech claim, affirm dismissal of the
equal protection claim, and remand for further proceedings
consistent with this opinion.

                                                    So ordered.
     WILKINS, Circuit Judge, concurring in the judgment: I
concur in the result reached by the majority, but I do so by a
slightly different path.

     I agree that we should reverse the dismissal of the First
Amendment claim. The government is wrong to suggest, see
Appellee Br. 31-33, that the Foundation cannot properly plead
an as-applied First Amendment violation based on viewpoint
discrimination. See Nat’l Endowment for the Arts v. Finley,

 (1998) (acknowledging that even though the
case involved a facial challenge to the grant-making regulation,
a case could arise involving “an as-applied challenge . . . where
the denial of a grant may be shown to be the product of
invidious viewpoint discrimination”).         The government
concedes that the complaint alleges the Foundation was denied
a permit to write its message in a public forum. See Appellee
Br. 28. “In a public forum, by definition, all parties have a
constitutional right of access and the state must demonstrate
compelling reasons for restricting access to a single class of
speakers, a single viewpoint, or a single subject.” Perry Educ.
Ass’n v. Perry Loc. Educators’ Ass’n, 

 (1983).
Here, the Foundation has made specific, non-conclusory
allegations that the defacement statute was enforced against it
in a public forum, while it was not enforced against others
writing competing messages in the same forum during the same
set of protests. In my view, even though the Foundation must
meet the high bar of pleading purposeful discrimination to
prevail on its First Amendment claim, see Ashcroft v. Iqbal,

, 676–77 (2009), the high standard is met here. It
is at least plausible that “[w]hen government officials target
speech because of ‘particular views taken by speakers on a
subject,’ viewpoint discrimination is afoot.” Pahls v. Thomas,

 (10th Cir. 2013) (emphasis in original)
(quoting Rosenberger v. Rector & Visitors of Univ. of Va., 

 (1995)). See also Wood v. Moss, 

,
756–57 (2014) (“It is uncontested and uncontestable that
government officials may not exclude from public places
                               2
persons engaged in peaceful expressive activity solely because
the government actor fears, dislikes, or disagrees with the
views those persons express.”). Therefore, I believe that
alleging viewpoint discrimination in a public forum is
sufficient to state a claim and move forward to discovery and
briefing on the compelling interest and narrowly tailored
aspects of the analysis. See Zukerman v. U.S. Postal Serv., 

, 446 (D.C. Cir. 2020).

     The Fifth Amendment selective prosecution claim is a
different matter. “To establish selective prosecution, the
[plaintiff] must ‘prove that (1) [it] was singled out for
prosecution from among others similarly situated and (2) that
[the] prosecution was improperly motivated, i.e., based on race,
religion or another arbitrary classification.’” Branch Ministries
v. Rossotti, 

 (D.C. Cir. 2000) (first alteration
added) (quoting United States v. Washington, 

 (D.C. Cir. 1983)); see also United States v. Mangieri, 

 (D.C. Cir. 1982); Att’y Gen. v. Irish People,
Inc., 

 (D.C. Cir. 1982). The similarly situated
requirement is an exceedingly high bar to meet. The
Foundation must plead, in a plausible and non-conclusory
fashion, that “their circumstances present no distinguishable
legitimate prosecutorial factors that might justify making
different prosecutorial decisions with respect to them.” See
Branch Ministries, 

 (quoting United States v.
Hastings, 

 (4th Cir. 1997)). Here, one such
distinction appears on the face of the complaint: the
Foundation requested permission to deface the public property,
while those who were not prosecuted did not apply for permits.
J.A. 70–72. The Supreme Court expressly rejected the
selective prosecution claim in Wayte v. United States, on the
basis that persons who reported themselves or who were
reported by others as having broken the law were prosecuted,
while persons who did not report themselves or who were not
                              3
reported by others were not prosecuted. 

, 608–09
(1985). Thus, the fact that the Foundation “self reported” its
planned defacement by applying for a permit is a legitimate
prosecutorial factor under Wayte. Similarly, Wayte teaches that
the self reporting is also a distinguishing factor that fatally
undermines the selective prosecution claim. Therefore, the
dismissal of the Fifth Amendment claim is properly affirmed.