1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

) 

PATRICK MAHONEY et al., ) 

 ) 

Plaintiffs, ) 

 ) 

v. ) Civil Action No. 09-105 (ESH) 

 ) 

DISTRICT OF COLUMBIA, et al., ) 

 ) 

Defendants. ) 

____________________________________)

MEMORANDUM OPINION

Plaintiffs Reverend Patrick Mahoney, Kaitlin Mahoney Martinez, the Christian Defense 

Coalition, Survivors of the Abortion Holocaust, and Cheryl Conrad bring this action against 

defendants District of Columbia (“District”), Chief of the Metropolitan Police Department 

(“MPD”) Cathy L. Lanier, and unidentified MPD officer “John Doe.”1 Plaintiffs allege that 

defendants’ refusal to permit them to engage in “chalk art” demonstrations on the pavement of 

the 1600 block of Pennsylvania Avenue in front of the White House violated the First, Fourth, 

and Fifth Amendments to the U.S. Constitution; the Religious Freedom Restoration Act 

(“RFRA”), 42 U.S.C. § 2000bb et seq.; and the District of Columbia First Amendment Rights 

and Police Standards Act of 2004 (“FARPSA”), D.C. Law 15-352 (2005) (codified at D.C. Code 

§ 5-331.01, et seq.). Before the Court is defendants’ motion to dismiss the complaint or, in the 

alternative, for summary judgment and plaintiff’s opposition thereto. For the reasons set forth 

below, defendants’ motion will be granted. 

BACKGROUND 

In late 2008, plaintiffs began preparations for a January 24, 2009 demonstration on the 

 1

 Chief Lanier and John Doe are sued solely in their official capacities. 
2 

paved pedestrian promenade segment of the 1600 block of Pennsylvania Avenue, N.W., directly 

between the White House and Lafayette Park (“the 1600 Block promenade”), 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 (1973). (See Am. Verified Compl. (“Compl.”) ¶¶ 51-55, 57-60 [Dkt. 

14]; Pls.’ Mot. for TRO and Prelim. Inj. (“TRO Mot.”) [Dkt. 4], Decl. of Rev. Patrick Mahoney 

(“Mahoney Decl.”), Attach. 1 (“1st Henderson Letter”) at 1; Defs.’ Mot. to Dismiss the 

Complaint or, in the Alternative, for Summ. J. (“Mot.”) [Dkt. 17], Statement of Material Facts 

(“Defs.’ SMF”) ¶ 1.) This particular portion of Pennsylvania Avenue is under the jurisdiction of 

the District of Columbia, while the National Park Service (“NPS”) has jurisdiction over the 

adjacent White House sidewalk and Lafayette Park. (NPS Opp’n to TRO Mot. (“NPS TRO 

Opp’n”) [Dkt. 9] at 1.) In addition, NPS is responsible, pursuant to an agreement with the 

District, for maintaining and repairing the 1600 Block promenade. (Id.; see also id., Decl. of 

Ann Bowman Smith (“Smith Decl.”) ¶ 5 & Ex. B.) 

I. APPLICABLE STATUTES AND REGULATIONS 

In the District, expressive assemblies are regulated by the “First Amendment 

Assemblies” subchapter of FARPSA and related regulations. See generally D.C. Code §§ 5-

331.01 to -331.17; D.C. Mun. Regs. tit. 24, §§ 705-706, 711-712. Section 5-331.03 of the D.C. 

Code declares that it is the District’s policy to permit “First Amendment assemblies” – i.e., those 

conducted for social, political, and religious expression – “on the streets, sidewalks, and other 

public ways,” subject to “reasonable restrictions designed to protect . . . property . . . .” D.C. 

Code § 5-331.03; see also id. § 5-331.02(1) (defining “First Amendment assembly”). Except in 

three exempted situations, assembly organizers must give notice to the MPD and seek advance 

approval for their event so that the District can coordinate the use of public spaces by multiple 
3 

groups and facilitate the allocation of police protection and other municipal assistance to 

assembly participants. Id. § 5-331.05(b)-(d). However, it is not an offense to assemble without 

having received advance approval. Id. § 5-331.05(a).

FARPSA requires the MPD to “recognize and implement” the policy announced in § 5-

331.03 “when enforcing any restrictions” on assemblies. Id. § 5-331.04(a). The MPD may 

impose content-neutral “reasonable time, place, and manner restrictions” on expressive 

assemblies in three ways: prior to an assembly through the approval of an assembly plan; during 

an assembly for which no plan was approved; or during an assembly whose plan had previously 

been approved subject to restrictions, provided that the additional restrictions satisfy one of three 

specified criteria. Id. § 5-331.04(b) & (c). 

Although the authority to grant an assembly plan is vested exclusively with the Chief of 

Police or her designee, id. § 5-331.06(a)(1), the municipal regulations specify that assembly 

plans shall be approved if nine enumerated conditions are satisfied. D.C. Mun. Regs., tit. 24, § 

706.9 (“Regulation 706.9”). In addition, the exercise of assembly plan review and approval 

authority is subject to timing and notice requirements. See D.C. Code. § 5-331.06(b) & (c). For 

example, the Chief must provide a written rationale for any limitations on the approval of an 

assembly plan which the applicant had previously indicated would be “objectionable.” Id. § 5-

331.06(c)(3). An applicant may appeal restrictions and denials of approval to the Mayor or his 

designee, who must “expeditiously” issue a written ruling on the appeal before the assembly’s 

planned date and time. Id. § 5-331.06(d). 

II. PLAINTIFFS’ ASSEMBLY PLANS

On November 24, 2008, plaintiffs notified the MPD and the Department of the Interior 

(“DOI”) by letter of their intent to protest the Roe decision on January 24, 2009, on the 1600 
4 

Block promenade. (See 1st Henderson Letter at 1; Compl. ¶¶ 83, 92, 94; Defs.’ SMF ¶ 1.) The 

letter explained that plaintiffs planned “to create a variety of verbal and visual messages, by 

making chalk drawings on the paved surface of Pennsylvania Avenue.”2 (1st Henderson Letter 

at 2.) Plaintiffs’ letter was received by Commander James Crane of the MPD Special Operations 

Division (“SOD”), whose duties and responsibilities include the issuance or denial of assembly 

plan approvals pursuant to FARPSA (Defs.’ SMF ¶ 3), and by officials at the DOI, who 

communicated the information to the NPS.3 (See Smith Decl. ¶ 6.) 

On January 7, 2009, Commander Crane responded to plaintiff’s November 24 letter. 

(See TRO Mot., Mahoney Decl., Attach. 4 (“Crane Letter”); see also Compl. ¶¶ 97-98.) Crane’s 

letter articulated the MPD’s security concerns regarding the White House and requested 

additional information that would help the MPD fashion a permit, such as the number of 

anticipated participants, the starting and ending times of the demonstration, and whether 

plaintiffs contemplated using any sound amplification or other equipment.4

 (Crane Letter at 1-

2.) The letter was accompanied by a form entitled “Assembly Plan Notification/Application for 

Approval of Assembly Plan.” (Id. at 2, 3 (attachment).) It also informed plaintiffs that chalking 

the 1600 Block promenade and adjacent sidewalks would constitute defacement of public 

property in violation of the District’s criminal defacement statute, D.C. Code § 22-3312.01, as 

well as NPS regulations, and that the MPD did not intend “to issue a demonstration permit that 

 2

 The letter also gave notice of an intended January 22, 2009 protest of the Roe decision 

“by words and demonstration” in Lafayette Park. (1st Henderson Letter at 1.) 

3

 On December 10, 2008, plaintiffs met with NPS and U.S. Park Police representatives to 

discuss the January 22 Lafayette Park plans, but no decision had yet been made regarding 

plaintiffs’ request to conduct a chalking demonstration on January 24. (TRO Mot., Mahoney 

Decl., Attach. 2 (“2nd Henderson Letter”) at 1.) 

4

 It is undisputed that plaintiffs’ planned demonstration, as reflected in their November 24 

letter, was not subject to any of FARPSA’s exemptions from the advance approval requirement. 
5 

could be understood to exempt organizers or any other persons from the neutral application” of 

the District’s defacement statute. (Id. at 2.) 

On January 8, 2009, Margaret O’Dell, on behalf of the NPS, sent a letter to plaintiffs that 

explained the agency’s jurisdiction over the White House sidewalk and its maintenance 

responsibilities for the portion of Pennsylvania Avenue adjacent to the sidewalk. (NPS TRO 

Opp’n., Ex. 1 (“O’Dell Letter”).) O’Dell expressed the agency’s view that chalking the grounds 

directly in front of the White House would violate District law, as well as NPS regulations 

prohibiting the defacement of “cultural . . . resources,” 36 C.F.R. § 2.1(a)(6), and of “real 

property” on park lands under federal legislative jurisdiction. Id. § 2.31(a)(3) & (b). (See O’Dell 

Letter at 2.) O’Dell’s letter also asserted that the prohibition on chalking was a reasonable time, 

place, and manner regulation consistent with the First Amendment. (Id. at 1-2.) 

On January 9, 2009, plaintiffs responded to the MPD by letter, citing the District’s past 

sponsorship of chalk art events on public streets in other locations and characterizing as “patently 

ridiculous” the refusal to permit chalking on the 1600 Block promenade. (TRO Mot., Mahoney 

Decl., Attach. 5 (“3rd Henderson Letter”) at 4; Am. Comp. ¶ 106.) Plaintiffs’ letter demanded 

that permission be granted for them to express their views “through the medium of sidewalk 

chalk” or else they would initiate litigation to compel such permission. (3rd Henderson Letter at 

4.) 

On January 12, 2009, Commander Crane transmitted to plaintiffs an “Assembly Plan 

Approval” that permitted the use of signs and banners but expressly withheld permission for 

sidewalk chalking: 

In accordance with the provisions of the First Amendment Assemblies Act of 

2004, permission is hereby granted to Rev. Patrick Mahoney to conduct a First 

Amendment Assembly on Saturday, January 24, 2009 from 0700 hours (assembly 

time), [to] 1900 hours (disbanding time), consisting of no more than 5,000 
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persons. You are permitted to possess signs and banners. However, there is no 

permission granted to use chalk or any other material to mark the surfaces of 

Pennsylvania Ave., N.W. 

(TRO Mot., Mahoney Decl., Attach. 6 (“Assembly Plan Approval”) at 2 (emphasis added).) The 

Assembly Plan Approval also indicated that plaintiffs would need a U.S. Park Police permit in 

order to make any use of the White House sidewalk or Lafayette Park. (Id.) 

III. THE INSTANT ACTION 

On January 16, 2009, plaintiffs initiated this action and moved for a temporary 

restraining order (“TRO”) and preliminary injunction, seeking to stop the District and the MPD 

from denying them permission to engage in “chalk art” as part of their approval to demonstrate 

on January 24. On the evening of January 20, the day of the presidential inauguration, 

defendants and the NPS, as amicus curiae, filed oppositions to plaintiffs’ motion. [Dkt. 8-9.] 

After hearing argument on January 22, the Court denied injunctive relief on the grounds that 

plaintiffs failed to establish a substantial likelihood of success on the merits. (See Jan. 22, 2009 

Minute Order.) 

On January 24, 2009, Mahoney and others went to the 1600 block of Pennsylvania 

Avenue, N.W. with the intent to conduct their planned demonstration. (See Compl. ¶¶ 125-127.) 

Commander Crane and other MPD officers were also present. (Id. ¶ 128.) Mahoney began to 

chalk the pavement, but MPD directed him to cease doing so, took the chalk away from him, and 

required him to identify himself. (Id. ¶¶ 132-134; Defs.’ SMF ¶ 8; see also Defs.’ Mot., Ex. A 

(video recording of incident).) Mahoney was not taken into custody or charged with any offense. 

On February 25, 2009, plaintiffs filed an amended verified complaint asserting six causes 

of action. Plaintiffs’ first cause of action (“Count I”) contends that the District’s defacement 

statute, on its face, violates the First Amendment’s Speech Clause. (Compl. ¶¶ 157-164.) 

Plaintiffs’ second, third, fourth, and fifth causes of action assert that by threatening to apply the 
7 

defacement statute to plaintiffs’ activities, defendants violated plaintiffs’ rights under the First 

Amendment’s Speech and Free Exercise Clauses (“Count II”), RFRA (“Count III”), FARPSA 

(“Count IV”), and the equal protection component of the Fifth Amendment’s Due Process Clause 

(“Count V”). (Id. ¶¶ 165-186.) Plaintiffs’ final cause of action alleges that the MPD’s efforts to 

prevent Mahoney from chalking in front of the White House on January 24, 2009, violated his 

rights under the First, Fourth, and Fifth Amendments as well as RFRA (“Count VI”). (Id. ¶¶ 

187-198.) 

On March 17, defendants filed a motion to dismiss or, in the alternative, for summary 

judgment. [Dkt. 17-19.] On April 16, plaintiffs filed their opposition [Dkt. 20], and defendants 

filed their reply on May 5 [Dkt. 23]. On April 27, an annual “Chalk-In” event took place on H 

Street, N.W., between 21st and 22nd Streets, in which participants chalked the streets and 

sidewalks. (Pls.’ Mot. to Supplement Opp’n to Mot. (“Pl.’s Mot. to Supplement”) [Dkt. 24-25] 

at 2-3.) On May 6, 2009, plaintiffs sought to supplement their opposition in response to the 

Chalk-In event, and the Court granted the motion in light of defendants’ consent. 

ANALYSIS 

I. COUNTS I, II, AND IV: FREEDOM OF SPEECH CLAIMS 

The central dispute in this action is whether the government may prevent plaintiffs from 

chalking the 1600 Block promenade consistent with the Constitution. However, several 

threshold issues are not disputed. First, the parties agree that defendants were acting under the 

color of state law when they prevented plaintiffs from chalking. Second, the creation of words or 

images through chalk or any other medium is an act of expression that implicates the First 

Amendment. Third, the paved street of the 1600 Block promenade is public property that 

constitutes a “quintessential public forum[]” where “the government may not prohibit all 
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communicative activity,” because “streets and parks . . . ‘have immemorially been held in trust 

for the use of the public, and, time out of mind, have been used for purposes of assembly, 

communicating thoughts between citizens, and discussing public questions.’” Perry Educ. Ass’n 

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (quoting Hague v. CIO, 307 U.S. 496, 

515 (1939) (Roberts, J., concurring)). Fourth, the government may “regulate competing uses of 

public forums” by “impos[ing] a permit requirement on those wishing to hold a march, parade, 

or rally.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (considering facial 

challenge to county ordinance requiring permits for assemblies and parade). 

“None of this leads, however, to the conclusion that [plaintiffs] had a constitutional right 

to be free of all restraints.” Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District 

of Columbia, 972 F.2d 365, 372 (D.C. Cir. 1992). “‘The privilege of a citizen of the United 

States to use the streets and parks for communication of views on national questions may be 

regulated in the interest of all,’” White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518, 

1526 n.66 (D.C. Cir. 1984) (quoting Hague, 307 U.S. at 515 (Roberts, J., concurring)), and “[t]he 

government is not precluded . . . from regulating expressive activities conducted on the White 

House sidewalk,” id. at 1527 (emphasis omitted), the public promenade directly in front of it, or 

any other public property. Although plaintiffs “may have First Amendment freedom to use [the 

1600 Block promenade] for protected speech,” this right “is not accompanied by an unlimited 

license” to speak in that traditional public forum through whatever medium and manner they see 

fit, “any more than the right to address an audience from the platform of a public monument 

would confer upon a speaker the freedom to paint a message on it, or to readorn with graffiti 

property owned by the government . . . .” People for the Ethical Treatment of Animals v. 

Giuliani (“PETA”), 105 F. Supp. 2d 294, 318 (S.D.N.Y. 2000); cf. United States v. Murtari, No. 
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07-CR-387, 2007 WL 3046746, at *5 (N.D.N.Y. Oct. 16, 2007) (noting that even though 

property damage statute under which defendant was charged did not prohibit defacement, he was 

not “free to write in chalk all over the federal plaza”). Moreover, neither the First Amendment 

nor FARPSA grants plaintiffs an unlimited right to tangibly alter the appearance of public 

property using chalk or any other medium, permanent or otherwise, nor does it require that this

particular street be available to serve as a writing tablet. See Christian Knights, 972 F.2d at 372 

(“When it comes to use of a public forum such as a street, . . . speakers do not have a 

constitutional right to convey their message whenever, wherever and however they please.”). 

With these guiding principles in mind, the Court will now turn to plaintiffs’ facial and 

as-applied challenges under the First Amendment and FARPSA. 

 A. Count I: Facial Challenge 

Count I attacks the defacement statute, D.C. Code § 22-3312.01, as unconstitutional on 

its face. Facial challenges are generally disfavored because they require courts to “‘formulate a 

rule of constitutional law broader than is required by the precise facts to which it is to be 

applied,’” and because they “threaten to short circuit the democratic process by preventing laws 

embodying the will of the people from being implemented in a manner consistent with the 

Constitution.” See Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1191 

(2008) (quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). 

Because the doctrines governing facial challenges are complex, the Court notes the instructive 

discussion offered by the Supreme Court in New York State Club Association, Inc. v. City of New 

York: 

Although . . . facial challenges are sometimes permissible and often have been 

entertained, especially when speech protected by the First Amendment is at stake, 

to prevail on a facial attack the plaintiff must demonstrate that the challenged law 

either “could never be applied in a valid manner” or that even though it may be 
10 

validly applied to the plaintiff and others, it nevertheless is so broad that it “may 

inhibit the constitutionally protected speech of third parties.” City Council of Los 

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). Properly 

understood, the latter kind of facial challenge is an exception to ordinary standing 

requirements, and is justified only by the recognition that free expression may be 

inhibited almost as easily by the potential or threatened use of power as by the 

actual exercise of that power. Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940). 

Both exceptions, however, are narrow ones: the first kind of facial challenge will 

not succeed unless the court finds that “every application of the statute created an 

impermissible risk of suppression of ideas,” Taxpayers for Vincent, [466 U.S. at 

798 n.15], and the second kind of facial challenge will not succeed unless the 

statute is “substantially” overbroad, which requires the court to find “a realistic 

danger that the statute itself will significantly compromise recognized First 

Amendment protections of parties not before the Court.” [Id. at 801.] 

487 U.S. 1, 11 (1988) (citations omitted); accord Initiative and Referendum Institute v. U.S. 

Postal Serv., 417 F.3d 1299, 1312 (D.C. Cir. 2005); Wash. State Grange, 128 S. Ct. at 1190 & 

n.6. 

Regardless of how plaintiffs attempt to cast their arguments, their facial attack on the 

statute fails in light of the defacement statute’s text and applicable legal doctrines. 

1. D.C. Code 22-3312.01 

Section 22-3312.01, previously codified as § 22-3112.1, is part of the criminal code that 

addresses “[t]respass” and “[i]njuries to [p]roperty.” See D.C. Code, tit. 22, ch. 33. The statute 

provides that 

[i]t 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 [sic] 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: 

(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. 
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D.C. Code § 22-3312.01. “Property” includes streets and sidewalks, see id. § 22-3312.05(9), and 

the statute also applies to public property under federal jurisdiction. See United States v. Bohlke, 

No. 87-M-1645, 116 Daily Wash. L. Rep 1697, 1700 (D.C. Super. Ct. July 14, 1988) (denying 

motion to dismiss and convicting defendant, under statute’s previous codification at § 22-3112.1, 

for defacing White House pillar); United States v. Frankel, 739 F. Supp. 629, 632 (D.D.C. 1990) 

(denying motion to dismiss transfer to federal court of defendants’ prosecution for defacing U.S. 

Capitol), sentences following plea aff’d sub nom. United States v. Mastropierro, 931 F.2d 905 

(D.C. Cir. 1991). Violators face criminal penalties of up to 180 days’ imprisonment and a fine of 

not less than $250 or more than $1000. D.C. Code § 22-3312.04. 

2. Every application of the statute does not create an impermissible risk 

of suppression. 

Plaintiffs contend that the defacement statute operates as “a classic prior restraint on 

speech” because some of its terms prohibit the writing, marking, drawing, or painting upon 

“public properties, including streets and sidewalks, which constitute quintessential public 

forums.” (Compl. ¶¶ 158-160.) They also contend that the MPD supposedly “ignores” the 

constraints placed by Regulation 706.9 upon the MPD’s discretion to deny approval for assembly 

plans, and as a result the defacement statute gives defendants “unbridled discretion” to regulate 

speech because its terms do not specify when consent must be granted to write upon or mark 

government property. (Id. ¶¶ 161-164.) Plaintiffs rely on cases such as Forsyth County, 505 

U.S. 123; City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); and Thomas v. 

Chicago Park District, 534 U.S. 316 (2002), each of which considered whether a licensing 

regime (or other direct regulation of expression) gave government decisionmakers unlimited 

discretion to restrict speech. (See Pls.’ Opp’n [Dkt. 20] at 5-9.) Such a regime would be 

unconstitutional because it creates “an impermissible risk of suppression of ideas.” Taxpayers 
12 

for Vincent, 466 U.S. at 798 n.15 (citing prior restraint and licensing cases). 

The defacement statute is not subject to attack under this theory because it is not 

“unconstitutional in every conceivable application . . . .” Taxpayers for Vincent, 466 U.S. at 796. 

Section 22-3312.01 is an exercise of the District’s legislative authority to protect property rights. 

See Hannibal & St. J.R. Co. v. Husen, 95 U.S. 465, 470-71 (1877) (noting that state’s legislative 

police power extends to “the protection of persons and property against noxious acts of other 

persons, or such a use of property as is injurious to the property of others”). It is true that the law 

implicates First Amendment interests because the statute’s terms make it unlawful “to write, 

mark, draw, or paint . . . upon” public property – including traditional public forums such as 

streets and sidewalks – without the government’s permission. But the law also prohibits 

disfiguring, cutting, or chipping real or movable property, or covering such property with filth or 

excrement, and these prohibitions are “perfectly reasonable” with respect to “most of the 

publicly owned objects mentioned in” the statute. Taxpayers for Vincent, 466 U.S. at 801; cf. 

Lederman v. Giuliani, No. 98-CV-2024, 2001 WL 902591, at *6-*7 (S.D.N.Y. Aug. 7, 2001) 

(rejecting facial challenge to substantially identical New York defacement statute brought by 

plaintiff who argued it was unconstitutional prohibition on chalking of public property). 

Plaintiffs’ reliance upon Forsyth County and similar cases is therefore misplaced. See 

also Taxpayers for Vincent, 466 U.S. at 798 & n.15 (distinguishing prior restraint and licensing 

cases when considering facial challenge to city ordinance making it unlawful to “paint, mark or 

write on, or post or otherwise affix, any hand-bill or sign to” public property). The statute is not 

a licensing regime designed “to regulate speech per se,” but rather a trespass statute aimed at 

conduct which the District may legitimately prohibit. Humanitarian Law Project v. Mukasey, 

552 F.3d 916, 933 (9th Cir. 2009) (finding no threat of censorship where statute permitted 
13 

Secretary of State “to authorize the otherwise prohibited provision of ‘material support or 

resources’ to a designated foreign terrorist organization,” where “material support” was not 

equivalent to political expression or association). Even the licensing cases recognize that the 

mere fact that a law gives the government some measure of discretion does not open that law to 

facial challenge as a prior restraint. Plain Dealer, 486 U.S. at 759. Instead, it “must have a close 

enough nexus to expression, or to conduct commonly associated with expression, to pose a real 

and substantial threat of the identified censorship risks.” Id. Section 22-3312.01 lacks just such 

a nexus. 

First, the defacement statute “does not punish only [defacement] engaged in for the 

purpose of expressing views.” United States v. O’Brien, 391 U.S. 367, 375 (1968). Instead, it 

prohibits all intrusions upon another’s property, regardless of motivation, that tangibly alter the 

appearance of the property. Plaintiffs have offered no authority to suggest that such intrusions 

are historically associated with constitutionally privileged speech, and “it is an untenable 

position that conduct such as vandalism is protected by the First Amendment merely because 

those engaged in such conduct ‘intend[ ] thereby to express an idea.’” Riely v. Reno, 860 F. 

Supp. 693, 702 (D. Ariz. 1994) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)); see also 

PETA, 105 F. Supp. 2d at 318; Wilson v. Johnson, 04-CV-059, 2005 WL 2417057, at *7 (E.D. 

Tenn. Sept. 30, 2005) (“Plaintiff got caught defacing the doors and walls of two University 

buildings, conduct that constitutes vandalism, and vandalism is not protected by the First 

Amendment.”), aff’d, 247 F. App’x 620 (6th Cir. 2007). 

Second, any burdens upon speech are independent of the expression’s content and 

incidental to the statute’s legitimate purpose of protecting property. See Nat’l Paint & Coatings 

Ass’n v. City of Chicago, 803 F. Supp. 135, 143 (N.D. Ill. 1992) (finding, for purposes of 
14 

interstate commerce analysis, that ordinance regulating possession of graffiti-type spray paints 

and markers served legitimate local interest in “preserving property values, deterring illegal 

activity and protecting the aesthetic character of the City’s neighborhoods from the devastation 

of graffiti vandalism”). The statute’s narrow focus leaves many alternative forms of speech, 

such as signs or banners, the use of natural or amplified sound, or any other medium that does 

not require changing the appearance of another’s property by writing a message directly “upon” 

it. 

Because it is not true that § 22-3312.01 “could never be applied in a valid manner,” 

Taxpayers for Vincent, 466 U.S. at 798, plaintiffs’ facial challenge under this theory fails as a 

matter of law. 

3. An overbreadth challenge is not appropriate. 

The Court will also consider plaintiffs’ facial challenge to § 22-3312.01 as one brought 

under the traditional formulation of the “overbreadth” doctrine, because the Supreme Court has 

not always consistently described whether the rationale for permitting a facial attack upon a 

licensor’s excess discretion is distinct from the rationale for permitting a facial overbreadth 

challenge. Compare, e.g., Wash. State Grange, 128 S. Ct. at 1190 & n.6 (distinguishing facial 

challenges based on theory that “the law is unconstitutional in all of its applications” from those 

based on overbreadth), with Forsyth County, 505 U.S. at 129 (describing facial challenges to 

licensing regimes as subset of overbreadth doctrine); see also Griffin v. Sec’y of Veterans Affairs, 

288 F.3d 1309, 1320-21 (Fed. Cir. 2002) (discussing discrepancies in Supreme Court’s 

discussion of overbreadth doctrine). To hold that § 22-3312.01 is invalid on its face “by reason 

of the overbreadth doctrine,” the Court must conclude that “the trespass [statute], taken as a 

whole, is substantially overbroad judged in relation to its plainly legitimate sweep.” Virginia v. 

Hicks, 539 U.S. 113, 122 (2003); Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) 
15 

(“[P]articularly where conduct and not merely speech is involved, . . . the overbreadth of a statute 

must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate 

sweep.”). Such a finding would “suffice[] to invalidate all enforcement of [the] law, ‘until and 

unless a limiting construction or partial invalidation so narrows it as to remove the seeming 

threat or deterrence to constitutionally protected expression.’” Hicks, 539 U.S. at 118-19 

(quoting Broadrick, 413 U.S. at 615). 

“This is not, however, an appropriate case to entertain a facial challenge based on 

overbreadth,” Taxpayers for Vincent, 466 U.S. at 801, because “the parties challenging the 

statute are those who desire to engage in protected speech that the [supposedly] overbroad statute 

purports to punish . . . .” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). “[T]he 

overbreadth doctrine is essentially a jus tertii device; it evolved in order to permit one properly 

charged under a statute to raise the First Amendment rights of others, not charged, whose 

associational or expressive rights might be chilled by enforcement of overly broad legislation.” 

Waters v. Barry, 711 F. Supp. 1125, 1133 (D.D.C. 1989); accord Hutchins v. District of 

Columbia, 188 F.3d 531, 548 n.14 (D.C. Cir. 1999) (en banc) (“[A]n assertion of a facial 

challenge under the First Amendment overbreadth doctrine . . . is really a standing exception . . . 

for parties engaged in unprotected conduct to challenge applications of the statute against third 

parties not before the court.” (emphasis added)). “[W]hen, as here, the plaintiffs are themselves 

engaged in protected activity – when the challenged statute would have no greater impact upon 

the rights of nonparties than it would have upon the rights of the parties before the Court – there 

is no need to employ a traditional overbreadth analysis.” Waters, 711 F. Supp. at 1133. 

Plaintiffs’ efforts to chalk on a public street already implicate those portions of § 22-

3312.01 that most directly raise First Amendment concerns, so there can be no basis to conclude 
16 

that the law “applies to any conduct more likely to be protected by the First Amendment than 

[plaintiffs’] own [expressive activities].” Taxpayers for Vincent, 466 U.S. at 802. If the 

defacement statute “may be validly applied to [plaintiffs], it can be validly applied to most if not 

all of the [writing, marking, drawing, or painting upon public property done by] parties not 

before the Court.” Id. There is thus no “realistic danger that the ordinance will significantly 

compromise recognized First Amendment protections of individuals not before the Court,” id., 

“no want of a proper party to challenge the statute, [and] no concern that an attack on the statute 

will be unduly delayed or protected speech discouraged.” Spokane Arcades, 472 U.S. at 502. 

It is clear that plaintiffs’ facial challenge – whether based on a theory of unbridled 

discretion or substantial overbreadth – must fail, and thus, Count I will be dismissed for failure to 

stated a claim upon which relief can be granted.5

For all of these reasons, Count I will be dismissed as a matter of law.

B. As-Applied Challenges 

Plaintiffs also bring “as-applied” challenges to defendants’ reliance upon the defacement 

 5

 Assuming arguendo that an overbreadth challenge were appropriate here, which it is 

not, such a challenge would fail for the reasons that the Supreme Court rejected a similar 

overbreadth challenge to a local trespass law in Hicks. See 539 U.S. at 123-24 (holding that 

trespass policy governing public housing development’s “privatized” public streets was not 

facially overbroad, because policy applied to all individuals entering the development’s streets 

and “not just to those who seek to engage in expression,” where Court had assumed arguendo 

that streets remained public forums and that policy of banning individuals who lacked 

“‘legitimate business or social purpose for being on the premises’” was unlawful grant of 

unfettered discretion to housing development’s manager). As was the case with the “no-return” 

policy in Hicks, the defacement statute here cannot be deemed substantially overbroad. Even if 

the defacement statute unlawfully gave defendants unbridled discretion to grant or deny consent 

to write upon or mark a public street, the statutory text plainly prohibits many other forms of 

defacing conduct with respect to many other types of property without raising any First 

Amendment concerns. “[J]udged in relation to its plainly legitimate sweep,” id. at 122, the 

defacement statute is not substantially overbroad, and plaintiffs’ facial challenge would, if 

permitted to proceed, fail. See also id. at 124 (“Rarely, if ever, will an overbreadth challenge 

succeed against a law or regulation that is not specifically addressed to speech or to conduct 

necessarily associated with speech (such as picketing or demonstrating).”). 
17 

statute to restrict plaintiffs’ ability to chalk the 1600 Block promenade.

1. Count II: First Amendment - Speech Clause 

Count II alleges that defendants violated plaintiffs’ freedom of speech “[b]y threatening 

to apply a provision of the criminal code of the District of Columbia” to their expressive 

conduct. (Compl. ¶ 170.) “Plaintiffs acknowledge that the District may regulate all such 

activities” enumerated in the defacement statute, “including chalk art, whether such a statute 

exists or not.” (Opp’n at 9 n.2) They argue, however, that those laws are unconstitutional at 

applied to them.6

With respect to any “as-applied” challenge, it is well settled that “[t]he permissible mode 

of regulati[ng]” the use of a traditional public forum “is summarized under the familiar heading 

‘time, place and manner.’” Christian Knights, 972 F.2d at 372; Mahoney v. U.S. Marshals Serv., 

454 F. Supp. 2d 21, 32 (D.D.C. 2006) (rejecting as-applied challenge, brought by Rev. Mahoney 

and Christian Defense Coalition, to restriction as to where they could demonstrate outside the 

Red Mass). “[R]easonable time, place, and manner regulations” are valid “as long as the 

 6

 Plaintiffs appear to frame their “as-applied” challenge in terms of Forsyth County’s 

requirement of “narrowly drawn, reasonable and definite standards.” 505 U.S. at 133. (See 

Opp’n at 10.) This is not the standard for an as-applied challenge, and plaintiffs’ argument is 

based on several incorrect premises, owing to plaintiffs’ erroneous conclusion that D.C. Code § 

22-3312.01 is analogous to a licensing provision governed by Forsyth County and similar cases, 

see supra Section III.A.1, as well as their misinterpretation of FARPSA and Regulation 706.9. 

See infra Section III.B.2. 

However, even if Forsyth County were applicable by virtue of the MPD’s reliance upon 

the defacement statute when carrying out its duties under FARPSA, the purpose of objective 

standards is to help ensure that a licensing scheme is valid on its face, because “without 

standards to fetter the licensor’s discretion, the difficulties of proof and the case-by-case nature 

of ‘as applied’ challenges render the licensor’s action in large measure effectively 

unreviewable.” Plain Dealer, 486 U.S. at 757. Because the defacement statute is not 

unconstitutional on its face, and because plaintiffs disavow any challenge to FARPSA’s facial 

validity (Opp’n at 3), the Forsyth County considerations would not inform the Court’s analysis 

of plaintiffs’ “as-applied” claims. 
18 

restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest, 

and leave open ample alternative channels of communication.’” Lederman v. United States, 291 

F.3d 36, 44 (D.C. Cir. 2002) (quoting United States v. Grace, 461 U.S. 171, 177 (1983)); White 

House Vigil, 746 F.2d at 1527. The undisputed facts show that defendants’ reliance upon § 22-

3312.01 when imposing the chalking restriction constitutes just such a valid regulation of the 

place (i.e., the promenade) and manner (i.e., writing directly upon the surface of the promenade) 

of plaintiff’s speech.7

 And thus, plaintiffs’ “as-applied” challenge fails.

 a) Content-neutrality 

“A regulation that serves purposes unrelated to the content of expression is deemed 

neutral, even if it has an incidental effect on some speakers or messages but not others. 

Government regulation of expressive activity is content neutral so long as it is ‘justified without 

reference to the content of the regulated speech.’” Ward v. Rock Against Racism, 491 U.S. 781, 

791-92 (1989) (quoting Clark v. Cmty. for Creative Non-Violence (“CCNV”), 468 U.S. 288, 293 

(1984)) (first emphasis added); Emergency Coalition to Defend Educ. Travel v. U.S. Dep’t of the 

 7

 Plaintiffs have submitted an affidavit by Rev. Mahoney, pursuant to Rule 56(f)(2), 

asserting that they are “unable to present evidence essential to demonstrate a genuine issue as to 

certain material facts,” because that evidence is in defendants’ possession. (Opp’n, Rule 56(f) 

Aff. of Rev. Mahoney (“Rule 56(f) Aff.”) ¶ 6.) The affidavit seeks discovery relating to (1) the 

District’s prior application of the defacement statute; (2) the type of substance used by 

defendants to mark the White House pavement for the 2005 inaugural parade; (3) evidence of 

prior attempts to clean chalk from the White House pavement; and (4) the District’s prior 

approval or denial of chalking in locations other than the 1600 block of Pennsylvania Avenue, 

including “all District streets and sidewalks.” (Id. ¶¶ 1-4.) For the reasons discussed herein, the 

Court denies the request because the discovery sought is not relevant to the Court’s analysis of 

the issues presented and therefore would not create triable issues of fact. See Brookens v. Solis, 

616 F. Supp. 2d 81, 96-97 & n.16 (D.D.C. 2009). And even if the discovery sought was 

arguably relevant, plaintiffs offer only “conclusory assertion[s] without any supporting facts” 

regarding their belief that further discovery would create a triable issue. See Byrd v. E.P.A., 174 

F.3d 239, 248 n.8 (D.C. Cir. 1999) (affirming grant of summary judgment for defendant and 

finding no abuse of discretion in denying Rule 56(f) request for discovery where plaintiff had 

“merely alleged that ‘there may well be knowledge on the part of [the defendant’s] employees or 

undisclosed documents” that would create fact issues).
19 

Treasury, 545 F.3d 4, 12 (D.C. Cir. 2008). “[W]hether a statute is content neutral or content 

based is something that can be determined on the face of it; if the statute describes speech by 

content then it is content based.” G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1071 

(9th Cir. 2006). The defacement statute is content-neutral on its face, as its plain language 

prohibits unauthorized property-altering conduct (such as chipping, writing, or covering with 

filth) without reference to the conduct’s motivation. See O’Brien, 391 U.S. at 375. 

Similarly, defendants’ refusal to let plaintiffs chalk the 1600 Block promenade was 

content-neutral because it was justified without reference to the content of plaintiff’s speech. 

After plaintiffs informed defendants of their intent to demonstrate against abortion and the Roe 

decision (see 1st Henderson Letter at 1-2), the responses from both the MPD and NPS took issue 

only with how chalking the promenade and the adjacent sidewalk would constitute defacement in 

violation of § 22-3312.01 and analogous federal regulations. (See Crane Letter at 2; O’Dell 

Letter at 1-2.) “This justification . . . ‘ha[s] nothing to do with content,’” Ward, 491 U.S. at 792 

(quoting Boos v. Barry, 485 U.S. 312, 320 (1988) (O’Connor, J.)), and it does not “even 

remotely suggest a hidden purpose to regulate speech because of a disagreement with appellants’ 

message.” Nat’l Org. for Women v. Operation Rescue, 37 F.3d 646, 655 (D.C. Cir. 1994). 

Defendants’ invocation of the defacement statute when undertaking FARPSA’s undisputedly 

constitutional approval process was consistent with FARPSA’s stated policy of permitting 

“reasonable restrictions designed to protect . . . property . . . .” See D.C. Code § 5-331.03. The 

content-neutral nature of defendants’ decision is also corroborated by the Assembly Approval 

Plan issued by Commander Crane, which gave plaintiffs permission for a twelve-hour, 5,000-

person demonstration with signs and banners in the precise location that they requested. (See 

Assembly Approval Plan at 2.) The approved assembly plan did not impose “any barrier to 
20 

delivering to the media, or to the public by other means, [plaintiffs’] intended message . . . .” 

CCNV, 468 U.S. at 293. 

Plaintiffs nonetheless argue that defendants selectively enforced the defacement statute 

because they harbored content-discriminatory motives. (See Opp’n at 14; see also Compl. ¶ 

181.) Plaintiffs’ only basis for this contention is that defendants have previously permitted 

others to chalk on public property in other parts of the District. The argument fails because 

plaintiffs merely point to dissimilar incidents which do not support – and even undermine – the 

argument that defendants applied the law in a content-based way. 

First, the existence of other chalking events in other locations throughout the District, 

such as the April 26 “Chalk-In” on H Street, has no bearing on defendants’ decision to prohibit 

chalking on the 1600 Block promenade. (See Pls.’ Mot. to Supplement at 2-3.) “[T]he White 

House area is a ‘unique situs’ for [F]irst [A]mendment activity,” White House Vigil, 746 F.2d at 

1533 (quoting A Quaker Action Group v. Morton, 516 F.2d 717, 729 (D.C. Cir. 1975)), and 

defendants have unique interests in the aesthetic maintenance of that area. Indeed, as defendants 

represented during the TRO hearing, the parties “wouldn’t be here” if plaintiffs had sought to 

engage in a chalk art demonstration in a different location. (Jan. 22, 2009 Hr’g Tr. on TRO Mot. 

(“TRO Hr’g Tr.”) at 62:5-8.) They further offer unrebutted evidence that no proposed assembly 

plan that contemplated “the marking of Pennsylvania Avenue in front of the White House, or the 

adjoining sidewalks, with chalk or any other substance” has been approved under FARPSA. 

(Defs.’ SMF ¶ 9.)8

 

 8

 The complaint does not allege anything to the contrary, and plaintiffs’ counsel conceded 

during the TRO hearing that no one has ever received permission to chalk the 1600 Block 

promenade. (See TRO Hr’g Tr. at 50:1-10.) In light of this concession, the Court rejects 

plaintiffs’ belated and unsupported attempt to dispute this fact. (See Opp’n, Pls.’ Response to 

Defs.’ SMF ¶ 9.) Moreover, plaintiffs cannot dispute this fact without any evidence, and 
21 

The Court also takes notice of the judicial opinions which show how the defacement 

statute (when codified at § 22-3112.1) was previously used to prosecute conduct, whether 

politically expressive or not, that tangibly altered the appearance of public property in the 

District – including the White House. See Bohlke, 116 Daily Wash. L. Rep. at 1697 n.2 

(prosecution for defacing White House pillar to protest government actions in Central America); 

Frankel, 739 F. Supp. at 632 (prosecution for defacing U.S. capitol to protest condition of the 

homeless); Craig v. United States, 523 A.2d 567, 567-68 (D.C. 1987) (prosecution for defacing 

municipal bus stop passenger shelter with phrase “Fool’s Gold” and two dollar signs). 

Second, the argument that defendants selectively enforced the statute against plaintiffs 

because of their views is contradicted by plaintiffs’ allegation that on at least two occasions, the 

MPD had advance knowledge of plaintiffs’ intent to demonstrate against abortion through chalk 

art and nonetheless permitted plaintiffs to go forward. (See generally Compl. ¶ 56.) In 2004, 

Rev. Mahoney, Kaitlin Martinez, and the Christian Defense Coalition allegedly held a chalk 

demonstration near Constitution Avenue and 15th Street “in the personal physical presence of” 

the previous MPD chief, “who allowed them to carry out the activity.” (Id. ¶ 56(a)(ii).) In 2007, 

these same plaintiffs allegedly sought and received the MPD SOD’s advance approval for a 

similar chalk art demonstration near George Washington University. (Id. ¶ 56(b)(iv) & (v).) 

During that demonstration, members of the public objected to plaintiffs’ expression “and tried to 

 

significantly, in their Rule 56(f) affidavit, they do not even suggest that further discovery might 

aid them in filling this enormous evidentiary gap. Instead, they seek to learn about chalking in 

locations other than in front of the White House. (See Rule 56(f) Aff. ¶ 4.) 

It is also of no significance that uniformed Secret Service officers allegedly did not stop 

plaintiffs from chalking on or near the 1600 Block promenade on one occasion in April 2006 

(see Compl. ¶ 56(c)(v) & (vi)), since the Secret Service was not acting as defendants’ agent, and 

its powers do not extend to granting permits to use the promenade. See generally 18 U.S.C. § 

3056 (“Powers, authorities, and duties of United States Secret Service”). 
22 

have it stopped.” (Id. ¶ 56(b)(vi).) MPD SOD officers intervened, “confirmed that [plaintiffs] 

were permitted to conduct the chalk art demonstration, and kept them from being molested while 

they completed their demonstration.” (Id. ¶ 56(b)(vii).) 

Even construing all the evidence in the light most favorable to plaintiffs, the Court must 

conclude that “there is nothing to support the notion that defendants’ denial of [plaintiffs’] 

application was neither content-neutral nor based on a desire to promote legitimate governmental 

interests.” Bosscher v. Twp. of Algoma, 246 F. Supp. 2d 791, 800 (W.D. Mich. 2003) (granting 

motion to dismiss First Amendment claim after rejecting argument that denial of construction 

permit was content-based, where defendant’s planning commission had concluded that denial 

would serve legitimate content-neutral “aesthetic concerns”). 

b) Substantiality of governmental interest and narrow tailoring 

Whether the defacement statute’s application to chalking is “narrowly tailored to serve a 

significant governmental interest” is a determination of law for the Court. White House Vigil, 

746 F.2d at 1528-29; accord Mesa v. White, 197 F.3d 1041, 1046 & n.5 (10th Cir. 1999) (citing 

White House Vigil and noting that whether government “demonstrated that [its asserted interest] 

is a significant government interest” “is a legal rather than factual question”). Defendants assert 

a governmental interest in, among other things, “preserving the aesthetics . . . of the paved part of 

Pennsylvania Avenue around the White House . . . .” (See Mot. at 14.) The Court agrees and 

concludes that the restriction on chalking is a narrowly tailored means of advancing the 

government’s significant interests, which are unrelated to the suppression of expression, in 

keeping the 1600 Block promenade free of “visual clutter,” Taxpayers for Vincent, 466 U.S. at 

808, and “conserving [District] property” through measures “designed to limit the wear and tear” 

to which they are subjected. CCNV, 468 U.S. at 299; see also id. at 297 (“[the Court] think[s]” 
23 

the government “has a legitimate interest in ensuring that the National Parks are adequately 

protected”). 

There can be no doubt that “[t]he government has a substantial interest in the preservation 

and enhancement of the human environment,” and “aesthetics are a proper focus of 

governmental regulation.” White House Vigil, 746 F.2d at 1528. This includes maintaining 

property held in trust for the public “in an attractive and intact condition.” CCNV, 468 U.S. at 

296 (noting substantial governmental interest in “maintaining the parks in the heart of our 

Capital in an attractive and intact condition”) (emphasis added). In some ways, “the 

government’s relationship to things under its dominion and control is virtually identical to a 

private owner’s property interest in the same kinds of things, and . . . [the government], ‘no less 

than a private owner of property, has power to preserve the property under its control for the use 

to which it is lawfully dedicated.’” Taxpayers for Vincent, 466 U.S. at 815 n.31 (quoting 

Adderley v. Florida, 385 U.S. 39, 47 (1966)). The byways directly in front of the White House 

are a “unique resource[] that the Federal Government holds in trust for the American people,” 

CCNV, 468 U.S. at 290; see, e.g., White House Vigil, 746 F.2d 1518 (upholding restriction on 

display of signs and placards within the “center zone” of the sidewalk outside the White House), 

and the District has significant interests in preserving the promenade for use and enjoyment by 

the public by “proscribing intrusive . . . formats for expression.” Taxpayers for Vincent, 466 

U.S. at 806. 

Plaintiffs do not appear to dispute defendants’ substantial interests in maintaining the 

visual and structural integrity of the 1600 Block promenade. (See Opp’n at 14 n.3 (“Plaintiffs do 

not contend that the District may not impose restrictions on expressive activity in furtherance of 

the protection of public property.”).) Nor could they, given that the complaint acknowledges that 
24 

the promenade has been closed to vehicular traffic since the 1990s, that it was converted to a 

pedestrian plaza, and that its paving, “sometimes referred to as ‘rustic paving,’ . . . constitutes an 

aesthetically driven selection” of materials that “provide[s] a ‘colored’ street surface different 

from typical asphalt surfaces.” (Compl. ¶¶ 87-91.) Instead, plaintiffs claim that no visible signs 

of chalking or damage will result if they are permitted to chalk the promenade. To support this 

claim, plaintiffs proffer that no such damage appeared after Rev. Mahoney marked a letter “P” 

upon the surface on January 24, 2009, nor after the chalk was apparently removed. (Id. ¶¶ 143-

44; see also Opp’n at 15 & n.6.) 

This argument is unpersuasive. The government’s interest in enforcing the defacement 

statute to protect the 1600 Block promenade should “not be judged solely by reference to the 

demonstration at hand” nor by reference to the harm caused (or not caused) by a single letter 

written by a single demonstrator. CCNV, 468 U.S. at 296-97. Instead, “courts must look to what 

would happen if every individual to which a restriction applies were freed of its limitations,” 

Mahoney, 454 F. Supp. 2d at 35, and defendants were compelled to grant each and every request 

to chalk the promenade. See Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 

654 (1981) (noting that “there would be a much larger threat to the State’s interest . . . if all other 

religious, nonreligious, and noncommercial organizations could likewise” enjoy the place and 

manner exemption sought by the plaintiffs). In addition, the significance of the interest “must be 

assessed in light of the characteristic nature and function of the particular forum involved.” Id. at 

651. 

The area near the White House “attract[s] great numbers of visitors who come . . . to see 

and experience” the president’s home. Heffron, 452 U.S. at 651 (contrasting commonplace 

public streets with state fair). Access to this “unique situs for demonstration activity” is “scarce” 
25 

because of the many “competing applicants” who hope to use that space. Quaker Action Group, 

516 F.2d at 727. “Absent the prohibition on [chalking], there would be other groups who would 

demand permission to deliver an asserted message by [chalking the promenade]. Some of them 

would surely have as credible a claim in this regard as do[] [plaintiffs], and the denial of 

[permission] to still others would present difficult problems for the [MPD].” CCNV, 468 U.S. at 

297; see also Mahoney, 454 F. Supp. 2d at 35. 

Because permission to chalk “cannot be meaningfully limited to” plaintiffs, Heffron, 452 

U.S. at 653, the likely widespread use of chalk art directly in front of the White House would 

contribute to visual clutter, thereby undermining the District’s interest in maintaining an area of 

singular national importance. See, e.g., Globe Newspaper Co. v. Beacon Hill Architectural 

Comm’n, 100 F.3d 175, 183, 187 (1st Cir. 1996); One World One Family Now v. City and 

County of Honolulu, 76 F.3d 1009, 1013 (9th Cir. 1996). In addition, basic principles of friction 

and erosion suggest that frequent chalking and cleaning efforts would accelerate the “wear and 

tear” inflicted upon the rustic paving’s surface. CCNV, 468 U.S. at 299.9

For similar reasons, the restriction on chalking upon the 1600 Block promenade is also 

narrowly tailored to serve the government’s substantial interests, because it “target[s] and 

[eliminates] no more than the exact source of the ‘evil’ [it seeks] to remedy.” Taxpayers for 

Vincent, 466 U.S. at 808.10 “[I]t is the tangible medium of expressing the message” – i.e., 

 9

 Because courts have long recognized the government’s substantial interests in 

promoting aesthetics through the visual and physical maintenance of public property, the Court 

need not rely upon the factual assertions of amicus regarding the actual damage caused to the 

promenade by chalk art and the power-washing methods used to remove chalk from the surface. 

(See Smith Decl. ¶ 4.) Therefore, plaintiffs’ Rule 56(f) requests for discovery as to this issue are 

irrelevant to the Court’s analysis. 

10 A challenged time, place, or manner restriction need not be “the least restrictive” 

method of furthering the government’s interest. Ward, 491 U.S. at 798. 
26 

chalking – “that has the adverse impact on the appearance of the landscape. . . . Here, the 

substantive evil – visual [clutter] – is not merely a possible by-product of the activity, but is 

created by the medium of expression itself. . . . [T]herefore, the application of the [restriction] in 

this case responds precisely to the substantive problem which legitimately concerns the 

[District]” and “curtails no more speech than is necessary to accomplish its purpose.” Id. at 810; 

accord White House Vigil, 746 F.2d at 1536 n.112. 

It is not for the Court to decide “how much protection the [promenade] require[s] or how 

an acceptable level of preservation is to be attained.” CCNV, 468 U.S. at 299. “The validity of 

[time, place, or manner] regulations does not turn on a judge’s agreement with the responsible 

decisionmaker concerning the most appropriate method for promoting significant government 

interests or the degree to which those interests should be promoted.” Ward, 491 U.S. at 800 

(internal quotations omitted). Just as challenges to time, place, or manner decisions do not 

permit the courts “to replace the Park Service as manager of” Lafayette Park, CCNV, 468 U.S. at 

299, they do not permit this Court to replace defendants as stewards of the 1600 Block 

promenade. 

c) Availability of ample alternative channels of communication 

Plaintiffs’ preferred medium may be to chalk the pavement, but “the First Amendment 

does not guarantee the right to communicate one’s views at all times and places or in any manner 

that may be desired.” Heffron, 452 U.S. at 647. What it requires is that a content-neutral 

regulation, such as the chalking restriction, preserves the speaker’s access to ample alternative 

channels of communication. That requirement was certainly met here. 

“Plaintiffs have not been prohibited from directing their speech activity at a specific 

audience at a specific time and place.” Mahoney, 454 F. Supp. 2d at 35. To the contrary, they 
27 

were given permission to speak through signs, banners, and a demonstration of up to 5,000 

people, with no restriction upon their ability to speak aloud, in the very location and times they 

wanted. Their only limitation was as to the medium they could use on the promenade, “but that 

did not render the restriction a complete prohibition on speech.” Id. 

Despite the chalking restriction, plaintiffs were free “to engage in a rich variety of 

expressive activities,” such as picketing, marching, carrying signs, singing, shouting, chanting, 

performing dramatic presentations, and appealing to passers-by. White House Vigil, 746 F.2d at 

1528. “The content of the message they espouse is theirs and theirs alone; they may express 

views and employ verbal formulae that would be punished as seditious libel, blasphemy or 

obscenity in less free societies.” Id. “In short, the [restriction] leave[s] unaffected a multitude of 

possibilities for meaningful protest” on the 1600 Block promenade. Id.; CCNV, 468 U.S. at 299 

(finding that ample alternative channels remained for communicating intended political message 

despite restrictions on sleeping in Lafayette Park). 

In sum, the restriction upon plaintiffs’ ability to demonstrate was a content-neutral and 

narrowly tailored means of furthering defendants’ significant aesthetic interests in avoiding 

visual clutter and protecting property, while leaving open ample alternative channels for 

plaintiffs to communicate their views about abortion. The Court therefore grants summary 

judgment on Count II’s cause of action under the First Amendment’s Speech Clause. 

2. Count IV: FARPSA 

 Count IV alleges that defendants violated FARPSA because they supposedly failed to 

comply with Regulation 706.9 when invoking the defacement statute to justify denying plaintiffs 

permission to chalk the promenade. (Compl. ¶¶ 179-182; see also Pls.’ Opp’n at 25.) Plaintiff’s 

argument is without merit, for they misunderstand the MPD’s authority under FARSPA. 
28 

As declared in FARPSA, it is the District’s policy to permit expressive assemblies, 

subject to reasonable restrictions designed to, inter alia, “protect . . . property . . . .” D.C. Code. 

§ 5-331.03. The MPD “shall recognize and implement” this policy when enforcing restrictions 

on assemblies, id. § 5-331.04(a) (emphasis added), which it can do by imposing reasonable 

content-neutral time, place, or manner restrictions through the approval of an assembly plan. See 

id. § 5-331.04(b)(1) & (c). Thus, by its plain text, FARPSA mandates that the MPD account for 

the protection of property when imposing time, place, and manner restrictions during the 

assembly approval process. Defendants’ reliance upon the defacement statute was wholly 

consistent with this mandate. 

Regulation 706.9 supplements FARPSA by specifying that proposed assembly plans 

“shall be approved” if the Chief of Police concludes that nine enumerated criteria have been 

satisfied. D.C. Mun. Reg., tit. 24, § 706.9(a)-(i). Put another way, the regulation sets forth nine 

grounds for denying a proposed assembly plan. The last of the nine is the only one to directly 

reference property interests. See id. § 706.9(i). It gives the Chief of Police discretion not to 

approve an assembly plan if she concludes that the proposed event will “create a substantial 

possibility of violent, disorderly conduct likely to endanger public safety or to result in 

significant property damage.” Id.

Plaintiffs interpret FARPSA and Regulation 706.9 as prohibiting the MPD from 

“imposing restrictions on speech in a public forum” in order to protect property unless there is a 

chance of “significant property damage” as a result of “violent, disorderly conduct.” (Opp’n at 

13 (emphasis added).) In keeping with his reading, plaintiffs contend that defendants could not 

prohibit the use of chalk without justifying it by reference to a reasonable prediction of violence 

that would cause significant property damage. (Id.) This is an incorrect reading of the statutory 
29 

regime, because plaintiffs erroneously conflate Regulation 706.9’s provisions for denying an 

assembly plan with the rest of FARPSA’s provisions for restricting an assembly plan. 

The statutory and regulatory texts clarify that “denials” and “restrictions” are distinct and 

independent concepts. For example, the MPD must give written notice when denying an 

assembly plan as well as when approving a plan “subject to time, place, or manner restrictions” 

that are “objectionable to the applicant.” D.C. Code. § 5-331.06(c)(3); D.C. Mun. Reg., tit. 24, § 

706.12. Similarly, the administrative review procedures contemplate appeals of denials, as well 

as approvals subject to objectionable restrictions. D.C. Code § 5-331.06(d)(1); D.C. Mun. Reg., 

tit. 24, § 712.1. The MPD may also impose restrictions on an assembly as it occurs, even though 

no plan for that event was ever submitted or approved. D.C. Code § 5-331.04(b)(3). 

Plaintiffs argue that the restriction on chalking in this instance was an “effective denial” 

because plaintiffs were prohibited from engaging in the only manner of speech that they wanted 

to employ. (Opp’n at 2.) This blurring of concepts is inconsistent with FARPSA. A “First 

Amendment assembly” is defined simply as any “a demonstration, rally, parade, march, picket 

line, or other similar gathering conducted for the purpose of persons expressing their political, 

social, or religious views.’” See D.C. Code § 5-331.02(1). For purposes of the statute, it is 

irrelevant what particular medium of expression a demonstrator chooses to employ; an 

“assembly” is still an “assembly.” The approval issued by Commander Crane did, in fact, 

approve plaintiffs’ plan to hold an assembly, i.e., to hold a “gathering conducted for the purpose 

of [plaintiffs] expressing their . . . religious views.” Id. The fact that this assembly was “subject 

to time, place, or manner restrictions” that were “objectionable to the applicant[s],” id. § 5-

331.06(d)(1), does not mean that the MPD denied plaintiffs’ request for an assembly. 

The Court concludes that FARPSA’s general policy, which includes the protection of 
30 

property, empowers the MPD to impose reasonable content-neutral restrictions that are far 

broader than Regulation 706.9’s grounds for declining to approve an assembly. Defendants’ 

reliance upon the defacement statute was consistent with the MPD’s responsibility under 

FARPSA to recognize and implement the District’s property-protective policy when imposing 

restrictions through the approval of an assembly plan. Because defendants have not violated 

FARPSA, Count IV fails as a matter of law.11

III. COUNTS II AND III: RELIGIOUS FREEDOM CLAIMS 

A. Count II: First Amendment - Free Exercise Clause 

Count II also alleges that defendants’ reliance upon the defacement statute violated 

plaintiffs’ First Amendment right to the free exercise of religion. (Compl. ¶¶ 165-72.) Plaintiffs 

assert that they are “compelled by the teaching of their Christian faith[] to conclude that the 

status of legalized abortion in the United States[] puts their nation in defiance of God’s order for 

liberty,” and that this conclusion motivates their social activism. (Id. ¶¶ 43, 45.) 

The Supreme Court’s decision in Employment Division, Department of Human Resources 

v. Smith, 494 U.S. 872 (1990), clarified that under the Free Exercise Clause, a neutral law of 

 11 Defendants also argue that plaintiffs may not sue for a violation of FARPSA because 

the statute does not create a private right of action. (See Defs.’ Reply in Supp. of Mot. (“Reply”) 

[Dkt. 23] at 13-14.) The Court agrees and concludes, in the alternative, that Count IV must be 

dismissed on this ground. The most important consideration “is whether the legislature intended 

to create a private right of action.” Dial A Car, Inc. v. Transp., Inc., 132 F.3d 743, 744 (D.C. 

Cir. 1998) (holding that District statute did not create private right of action); Transamerica 

Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979) (“[W]hat must ultimately be 

determined is whether [the legislature] intended to create the private remedy asserted . . . .”). 

FARPSA’s legislative history indicates that the D.C. Council ultimately rejected a proposed 

provision, § 5-321, that would have expressly provided a private right of action. (See Reply at 

13; id., Attach. 1 at 9; id., Attach. 2 at 35-36; id., Attach. 3 at 9.) A private right of action for 

statutory violations also appears inconsistent with the statutory scheme, which provides for direct 

administrative review of the MPD’s denials of and modifications to assembly plan proposals. 

D.C. Code. § 5-331.06(d). See Cort v. Ash, 422 U.S. 66, 78 (1975); accord Dial A Car, 132 F.3d 

at 744 (applying Cort). 
31 

general applicability is not subject to heightened scrutiny. See, e.g., id. at 879 (“[T]he right of 

free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral 

law of general applicability on the ground that the law proscribes (or prescribes) conduct that his 

religion prescribes (or proscribes).’” (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) 

(Stevens, J. concurring in judgment)); Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C. Cir. 

2008). Plaintiffs do not dispute that the defacement statute is facially neutral. (See Opp’n at 18.) 

They do, however, contend that it is not generally applicable, because the statutory language 

“permit[s] government officials to engage in selective enforcement of that law in a manner that 

would burden only those engaging in specified conduct based on religious motivation, and 

because [d]efendants have threatened to apply that law in precisely such a selective manner to 

[p]laintiffs’ chalk art demonstration.” (Id. at 19.) 

The principle of general applicability prevents the government from pursuing legitimate 

interests in a manner that has the practical effect of imposing burdens primarily upon conduct 

motivated by religious belief. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 

U.S. 520, 543 (1993); Am. Family Ass’n, Inc. v. F.C.C., 365 F.3d 1156, 1171 (D.C. Cir. 2004). 

Heightened scrutiny of even a facially neutral law is appropriate if the law advances 

governmental interests in a “substantial[ly]” “underinclusive” way that “fail[s] to prohibit 

nonreligious conduct that endangers these interests in a similar or greater degree than [the 

prohibited religiously motivated conduct] does.” Church of Lukumi, 508 U.S. at 543 (holding 

that ordinances prohibiting ritual slaughter of animals were not of general applicability). 

However, where a law does not have the effect of targeting religious speech “to an extreme 

degree,” and it does not impose “extreme burdens [that] are not related to the legitimate 

governmental interests served by the regulation,” then it does not run afoul of the general 
32 

applicability requirement. Am. Family Ass’n, 365 F.3d at 1171. 

As discussed, the defacement statute rationally advances the District’s substantial 

interests in promoting aesthetics and protecting property. It contains no exemptions that would 

show nonreligious defacement more lenience than religiously motivated defacement. There is 

also no evidence that any request to chalk the 1600 Block promenade, whether motivated by 

secular or religious beliefs, has been granted under FARPSA. There is therefore no basis to 

argue that the defacement statute has been selectively enforced to prohibit religiously motivated 

defacement in the unique location of the White House area while letting nonreligious defacement 

in the vicinity go unchallenged. If anything, defacement motivated by secular political purposes 

in that area has been prosecuted, see Bohlke, 116 Daily Wash. L. Rep. at 1697 n.2, while Rev. 

Mahoney has not even been charged. Accordingly, plaintiffs’ attack upon the general 

applicability of § 22-3312.01 fails. As a result, although the statute incidentally affects 

religiously motivated action, plaintiffs cannot raise any free exercise challenge to the law under 

Smith’s general rule. See 494 U.S. at 878-81; see also Kaemmerling, 553 F.3d at 677.12

B. Count III: RFRA 

Count III alleges that defendants violated plaintiffs’ rights under RFRA. (Compl. ¶¶ 173-

178.) RFRA was enacted as a congressional response to the Supreme Court’s decision in Smith, 

and it “expressly adopted the compelling interest test,” rejected by Smith, “‘as set forth in 

 12 In the alternative, plaintiffs contend that because their claim involves religiously 

motivated expression that implicates both the Free Exercise and Speech Clause, this action 

presents a “hybrid situation” as discussed in Smith, 494 U.S. at 881-82 & n.1, such that § 22-

3312.01 would be subject to heightened scrutiny. (See Pls.’ Opp’n at 19-20.) Plaintiffs may not, 

however, raise a “hybrid claim,” because they do not have an independently viable claim under 

the Speech Clause. See Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001)) (“For this 

argument to prevail, one would have to conclude that although the regulation does not violate the 

Free Exercise Clause, and although they have no viable First Amendment claim against the 

regulation, the combination of two untenable claims equals a tenable one. But in law as in 

mathematics zero plus zero equals zero.” (citations omitted)). 
33 

Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).’” 

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006) (quoting 

42 U.S.C. § 2000bb(b)(1)). Under RFRA, the government13 may not “substantially burden a 

person’s exercise of religion” unless “it demonstrates that the application of the burden to the 

person” is both “in furtherance of a compelling government interest” and “is the least restrictive 

means of furthering that compelling government interest.” 42 U.S.C. § 2000bb-1; Boardley v. 

U.S. Dep’t of Interior, 605 F. Supp. 2d 8, 14 (D.D.C. 2009). 

RFRA defines “exercise of religion” to include “any exercise of religion, whether or not 

compelled by, or central to, a system of religious belief.” 42 § 2000bb-2(4) (incorporating 

definition found in § 2000cc-5(7)(A)). “A litigant’s claimed beliefs ‘must be sincere and the 

practice[] at issue must be of a religious nature.’” Kaemmerling, 553 F.3d at 677 (quoting 

Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002)). “Because the burdened practice need 

not be compelled by the adherent’s religion to merit statutory protection,” what matters is not 

“the centrality of the particular activity to the adherent’s religion but rather . . . whether the 

adherent’s sincere religious exercise is substantially burdened.” Id. A substantial burden exists 

when government action puts “‘substantial pressure on an adherent to modify his behavior and to 

violate his beliefs . . . .’” Id. (quoting Thomas v. Review Bd., 450 U.S. 707, 718 (1981). By 

contrast, “[a]n inconsequential or de minimis burden on religious practice does not rise to this 

level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Id. 

Plaintiffs argue that “the threat of enforcement of criminal sanctions under D.C. Code § 

22-3312.01 as to [p]laintiffs’ planned chalk art demonstration imposed . . . ‘substantial pressure’ 

 13 Although RFRA no longer applies to state governments, see City of Boerne v. Flores, 

521 U.S. 507 (1997), it continues to apply to the District of Columbia. See 42 U.S.C. § 2000bb2(1) & (2). 
34 

on [p]laintiffs in deciding whether to follow through with their religious convictions on this 

occasion.” (Pls.’ Opp’n at 22.) The Court accepts plaintiffs’ representations that they are 

motivated by sincerely held religious beliefs to engage in the practice of “prayerfully 

challeng[ing]” President Obama on the issue of abortion by “express[ing] prayers, thoughts, 

views[,] and hopes” to him. (Compl. ¶¶ 54-55.) But plaintiffs do not allege that it is their 

sincerely held religious belief that they should express those views to the president through the 

specific medium of chalk or in the specific location of the 1600 Block promenade. (See 

generally id. ¶¶ 38-45, 53-55.) 

Rather, the complaint alleges that “many like-minded individuals” were going to be in the 

District area on January 22, 2009 “to express continued opposition” to abortion on the 

anniversary of the Roe decision, and that plaintiffs “decided to organize and conduct their chalk 

art demonstration” “[w]ith that in mind . . . .” (Compl. ¶¶ 57-60.) Plaintiffs acknowledge that 

chalk art is only “part of” their public religious and political expression. (Id. ¶ 56.) The 

complaint further clarifies that plaintiffs do not exclusively associate the medium of chalk art 

with their religious opposition to abortion, because they allegedly engaged in chalking 

demonstrations in solidarity and support of “the persecuted members and adherents of Falun 

Gong in Communist China.” (Id. ¶ 56(c)(iv).) 

It is clear that these allegations are insufficient to support a claim that the restriction on 

plaintiffs’ use of chalk pressured them “to modify [their] behavior and to violate [their] beliefs.” 

Thomas, 450 U.S. at 718 (emphasis added). Rather, it only required that they modify their nonreligious choice of expressive medium or location. Compare Henderson v. Kennedy, 253 F.3d 

12, 17 (D.C. Cir. 2001)) (finding no substantial burden in restriction upon plaintiffs’ ability to 

sell T-shirts on National Mall, because plaintiffs “merely alleged that it is their vocation to 
35 

spread the gospel by ‘all available means’”), with O Centro, 546 U.S. at 427 (considering 

substantial burden caused by federal ban on sacramental use of tea made from natural 

hallucinogens), and Comanche Nation v. United States, No. 08-CV-849, 2008 WL 4426621, at 

*17 (W.D. Okla. Sept. 23, 2008) (finding substantial burden where planned construction of 

government facility would obstruct Native American plaintiffs’ view of religiously significant 

landscape and thereby disrupt traditional religious practices). Plaintiffs remain free to act in 

accordance with their beliefs. The chalking restriction is, “‘at most[,] a restriction on one of a 

multitude of means’” that plaintiffs can use in order to engage in their practice of prayerful 

challenge. Boardley, 605 F. Supp. 2d at 14 (quoting Henderson, 253 F.3d at 17). As such, it 

does not substantially burden their exercise of religion, and Count III fails as a matter of law.

V. COUNT V: EQUAL PROTECTION CLAIM 

 Count V alleges that defendants violated plaintiffs’ equal protection rights under the Fifth 

Amendment’s Due Process Clause. (Compl. ¶¶ 183-86.) Plaintiffs contend that in preventing 

them from applying chalk to the pavement in front of the White House, the District treated them 

differently than other “similarly situated” persons who have been permitted to chalk other 

sideways or roadways located elsewhere in the District. (Pls.’ Opp’n at 25-26.) As already 

noted, the area near the White House is a unique location for First Amendment activity, White 

House Vigil, 746 F.2d at 1533, so the fact that defendants have permitted demonstrators to chalk 

in other locations does not make them “similarly situated” to plaintiffs. 

 Permission to chalk on the 1600 Block promenade has not been granted under 

FARPSA.14 (See Defs.’ SMF ¶ 9; TRO Hr’g Tr. at 50:1-10.) And it cannot be disputed that the 

 14 For this reason, plaintiffs cannot base their equal protection claim on the fact that the 

District and the Armed Forces Inaugural Committee were permitted to mark the surface with 

“some substance” in January 2005. (Pls.’ Opp’n at 27.) FARPSA did not go into effect until 
36 

defacement statute has, in fact, previously been applied to defacing conduct in that vicinity. See 

Bohlke, 116 Daily Wash. L. Rep at 1700. Plaintiffs therefore cannot show that “anyone who was 

similarly situated to them . . . was not similarly treated.” Mahoney, 454 F. Supp. 2d at 37 

(granting summary judgment for defendants); see also News Am. Publ’g., Inc. v. FCC, 844 F.2d 

800, 809 (D.C. Cir. 1988) (applying requirement that “government [must] afford similar 

treatment to similarly situated persons” to Fifth Amendment equal protection claim of 

discrimination on the basis of speech). Because there is no genuine issue of material fact, 

defendants are entitled to summary judgment on Count V. 

VI. COUNT VI: CLAIMS ARISING FROM THE JANUARY 24, 2009 

DEMONSTRATION 

 Count VI alleges that an unidentified “John Doe” MPD officer violated Mahoney’s 

constitutional and statutory rights when he stopped Mahoney from chalking the 1600 Block 

promenade on January 24, 2009, required Mahoney to identify himself, and seized the chalk that 

he was using. (Compl. ¶¶ 132-138, 187-98.) Because defendants properly relied upon the 

defacement statute when imposing a reasonable place and manner restriction to restrict Mahoney 

from chalking in front of the White House, the unidentified MPD officer’s efforts to prevent 

Mahoney from violating those restrictions could not abridge Mahoney’s rights under the First 

Amendment, Fifth Amendment, or RFRA. See, e.g., Mahoney, 454 F. Supp. 2d at 32-39 

(granting summary judgment to defendants on claim by Rev. Mahoney and others that police 

officers violated their rights under First Amendment, Fifth Amendment, and RFRA when 

restricting or arresting them for seeking to demonstrate protests outside “controlled access area” 

 

April 2005, and its assembly plan approval process did not exist during the 2005 Inauguration. 

Moreover, the line that was drawn along Pennsylvania Avenue for the inaugural parade does not 

constitute speech, which “requires both some intent to convey meaning and some meaningful 

effect.” United States v. Grace, 778 F.2d 818, 821 (D.C. Cir. 1985). 
37 

near annual Red Mass ceremony). Moreover, even if it could be argued that the officer’s actions 

constituted a search or seizure under the Fourth Amendment, which it cannot, the officer had 

probable cause to take action after observing Mahoney chalking the promenade in violation of a 

criminal defacement statute. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an 

officer has probable cause to believe that an individual has committed even a very minor 

criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the 

offender.”). Mahoney therefore fails to state claims under the Constitution or RFRA, and Count 

VI will be dismissed as a matter of law. 

CONCLUSION

For the foregoing reasons, the Court grants defendants’ motion. A separate Order will 

accompany this Memorandum Opinion. 

 /s/ 

 ELLEN SEGAL HUVELLE 

 United States District Judge 

Date: September 30, 2009