Mahoney v. Doe

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2010 Decided June 21, 2011

No. 09-7131

PATRICK MAHONEY, REVEREND, ET AL.,
APPELLANTS

v.

JOHN DOE, IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER,
METROPOLITAN POLICE DEPARTMENT, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00105)

Carly F. Gammill argued the cause for appellants. With
her on the briefs was James Matthew Henderson Sr.

Carl J. Schifferle, Assistant Attorney General, Attorney
General’s Office for the District of Columbia, argued the
cause for appellees. With him on the brief were Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General.
 2
Ronald C. Machen Jr., U.S. Attorney, and R. Craig
Lawrence and Marina U. Braswell, Assistant U.S. Attorneys,
were on the brief for amicus curiae National Park Service in
support of appellees.

Before: HENDERSON, BROWN and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Circuit Judge KAVANAUGH.

BROWN, Circuit Judge: Section 22-3312.01 of the
District of Columbia Code prohibits the defacement of public
and private property. Appellants, Rev. Patrick Mahoney,
Kaitlin Clare Martinez, the Christian Defense Coalition,
Cradles of Love, Inc., and Cheryl Conrad (collectively,
“Mahoney”) claim that prohibition, both on its face and as
applied, violates their First Amendment right to chalk the
1600 block of Pennsylvania Avenue (literally, the street in
front of the White House). The district court concluded
otherwise. We now affirm.

I

On November 24, 2008, Mahoney notified the
Metropolitan Police Department (“MPD”) and the
Department of the Interior (“DOI”) of his intent to carry out a
sidewalk chalk demonstration in front of the White House.
The purpose of the demonstration was to protest President
Obama’s position on abortion, and to protest the anniversary
of the Supreme Court’s decision in Roe v. Wade, 410 U.S.
113 (1973).
 3
The MPD responded to Mahoney’s request, asking for
more information about the number of protestors expected
and the time the protest would occur. In addition, the MPD
warned that sidewalk “chalking” in front of the White House
would constitute defacement of public property in violation of
the District of Columbia’s Defacement Statute, D.C. Code
§ 22-3312.01 (“Defacement Statute”).1 The Defacement
Statute provides:

It shall be unlawful for any person or persons
willfully and wantonly to disfigure, cut, chip,
or cover, rub with, or otherwise place filth or
excrement of any kind; to write, mark, or print
obscene or indecent figures representing
obscene or objects upon; to write, mark, draw,
or paint, without the consent of the owner or
proprietor thereof, or, in the case of public
property, of the person having charge, custody,
or control thereof, any word, sign, or figure
upon: Any property, public or private,
building, statue, monument, office, public
passenger vehicle, mass transit equipment or
facility, dwelling or structure of any kind . . . .

D.C. Code § 22-3312.01.

Mahoney responded by demanding the MPD reverse its
position and provide a “written assurance POST HASTE”
authorizing his chalking demonstration. In addition,
1
The National Park Service (“NPS”), which maintains authority
over the sidewalks abutting the 1600 block of Pennsylvania Avenue
pursuant to an interagency agreement, also responded to Mahoney’s
request. The NPS said Mahoney’s demonstration would violate
NPS regulations prohibiting the defacement of cultural resources.
See 36 C.F.R. §§ 2.1(a)(6), 2.31(a)(3).
 4
Mahoney noted the District of Columbia had previously
approved similar chalking events across the D.C. metropolitan
area, including annual youth chalk art contests and a “Chalk
for Peace” event in the summer of 2005. Three days after
receiving Mahoney’s letter, the MPD granted Mahoney
approval to conduct an assembly in front of the White House
“consisting of no more than 5,000 persons . . . permitted to
possess signs and banners.” The MPD refused, however, to
grant Mahoney permission to “use chalk or any other material
to mark the surfaces of Pennsylvania Ave.”

On January 16, 2009, Mahoney sued the MPD and the
District of Columbia (collectively, the “District”). Mahoney
requested a temporary restraining order and preliminary
injunction to keep the District from preventing Mahoney’s
chalking demonstration. The district court held an expedited
hearing, but denied Mahoney’s request for equitable relief
without a written opinion. Two days later, Mahoney began
chalking the street in front of the White House. MPD officers
asked Mahoney for identification, confiscated his chalk, and
directed him to stop. Mahoney obliged and the incident
ended peacefully. The officers did not take Mahoney into
custody or formally charge him with any offense.

After his failed chalking demonstration, Mahoney
amended his complaint, adding John Doe, the unidentified
MPD officer who prevented Mahoney from chalking on
January 24, 2009, and asserting six separate causes of action,
three of which Mahoney pursues on appeal. Mahoney claims
the Defacement Statute is unconstitutional on its face, is
unconstitutional as applied to his efforts to chalk the street in
front of the White House, and violates the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. The
District moved to dismiss Mahoney’s amended complaint, or
in the alternative, for summary judgment. The district court
 5
granted the District’s motion. Because it is not “generally
desirable” to consider a facial First Amendment challenge
“before it is determined that the statute would be valid as
applied,” Board of Trustees of State University of New York v.
Fox, 492 U.S. 469, 484–85 (1989), we begin with Mahoney’s
as-applied challenge.

II

The First Amendment says, “Congress shall make no
law . . . abridging the freedom of speech . . . or the right of the
people . . . to petition the Government for a redress of
grievances.” Mahoney claims the First Amendment protects
his right to chalk the street in front of the White House and
the District violated this right “[b]y threatening to apply” the
Defacement Statute to his expressive conduct. Comp. ¶ 170.
To resolve Mahoney’s claim, we proceed in three steps: first,
determining whether the First Amendment protects the speech
at issue, then identifying the nature of the forum, and finally
assessing whether the District’s justifications for restricting
Mahoney’s speech “satisfy the requisite standard.” Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797
(1985).

A

This is a somewhat unusual First Amendment case.
Section 22-3312.01 does not regulate speech; nor does the
code section directly implicate the content of speech by
defining the expressive content of the speech (e.g., a terrorist
threat) as the relevant harm. The Defacement Statute
criminalizes the conduct of defacing, defiling, or disfiguring
property by various means—some of which are clearly
expressive, like painting, drawing, or writing, while others,
like vandalizing or physically damaging property, are
 6
primarily destructive and only secondarily expressive.
Moreover, because prohibited activities may be permitted
with the land owner’s consent, the Defacement Statute bears a
likeness to more conventional licensing schemes. Thus,
enforcement of the Defacement Statute will not always
implicate the First Amendment.

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

B

“[T]he extent of scrutiny given to a regulation of
speech—in effect, how we examine the directness with which
it promotes the government’s goals and the degree to which it
burdens speech—depends on whether the regulation applies
in a public or nonpublic forum.” Boardley v. United States
Dep’t of Interior, 615 F.3d 508, 514 (D.C. Cir. 2010). The
type of forum—public, designated public, or nonpublic—
determines the extent to which government can control
speech. See Initiative & Referendum Inst. v. U.S. Postal
Serv., 417 F.3d 1299, 1305–06 (D.C. Cir. 2005). “Traditional
public fora are those places which by long tradition or by
government fiat have been devoted to assembly and debate.”
Cornelius, 473 U.S. at 802. A designated public forum
consists of “public property which the state has opened for
 7
use by the public as a place for expressive activity.” Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983). Lastly, “a nonpublic forum is by contradistinction
‘public property which is not by tradition or designation a
forum for public communication.’” Boardley, 615 F.3d at
514 (quoting Perry Educ. Ass’n, 460 U.S. at 46).

There is little dispute the street in front of the White
House is a public forum. “‘[P]ublic places’ historically
associated with the free exercise of expressive activities, such
as streets, sidewalks, and parks, are considered, without more,
to be ‘public forums.’” United States v. Grace, 461 U.S. 171,
177 (1983) (citations omitted); see also United States v. Doe,
968 F.2d 86, 89 (D.C. Cir. 1992) (referring to the area in front
of the White House—Lafayette Park—as a public forum).
The District’s ability to restrict expressive conduct in a
traditional public forum is limited to the enforcement of time,
place, and manner regulations, provided the restrictions “‘are
content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative
channels of communication.’” Grace, 461 U.S. at 177
(quoting Perry Educ. Ass’n, 460 U.S. at 45).

The District argues the 1600 block of Pennsylvania
Avenue is not a public forum when used as a “writing tablet.”
We interpret this as an argument that the 1600 block of
Pennsylvania Avenue is a designated public forum that
excludes certain media, including chalk. This is an odd
inversion of the typical forum dispute. Ordinarily, a litigant
argues the government has “carved out” a public forum from
an otherwise nonpublic space. See, e.g., Lamb’s Chapel v.
Center Moriches Union Free School Dist., 508 U.S. 384,
393–94 (1993) (finding school property a limited public
forum); Cornelius, 473 U.S. at 802–05 (rejecting the
argument that a charity drive at a government workplace is a
 8
public forum inside a non-public forum); Perry Educ. Ass’n,
460 U.S. at 45 (1983) (rejecting the argument that a school
district’s internal mail system was a public forum); Lehman v.
City of Shaker Heights, 418 U.S. 298, 299–300 (1974) (same
with regard to advertising space on city buses). In this case,
however, the government proposes to limit a preexisting
public forum by excising one class of expressive media.

The Supreme Court focuses on “the access sought by the
speaker” in defining a limited public forum’s boundaries.
Cornelius, 473 U.S. at 801. But in so doing, the Court takes a
“tailored approach,” id., “look[ing] to the policy and practice
of the government,” as well as “the nature of the property and
its compatibility with expressive activity,” id. at 802. Here,
the record contains no evidence that the 1600 block of
Pennsylvania Avenue has ever been designated as anything
but a public forum. Although the street is no longer open to
automobiles, it is open to pedestrians. It functions, for all
practical purposes, as an extension of the abutting sidewalk, a
space we previously held to be a public forum. See White
House Vigil for ERA Comm. v. Clark, 746 F.2d 1518, 1526–
27 (D.C. Cir. 1984). Moreover, the distinction the District
proposes is one without a difference: whether characterized as
a public forum or a designated public forum, the same legal
standard applies. See Perry Educ. Ass’n¸ 460 U.S. at 46.

In any event, the District conceded the 1600 block of
Pennsylvania Avenue is a public forum below, Motion to
Dismiss at 3, Docket 17 (“Defendants agree . . . the 1600
block of Pennsylvania Avenue is a traditional public
forum . . . .”), and raises this argument for the first time on
appeal. See Grant v. U.S. Air Force, 197 F.3d 539, 542 (D.C.
Cir. 1999) (“‘Absent exceptional circumstances, the court of
appeals is not a forum in which a litigant can present legal
theories that it neglected to raise in a timely manner in
 9
proceedings below.’”) (quoting Tomasello v. Rubin, 167 F.3d
612, 618 n. 6 (D.C.Cir.1999)).

C

Even under the standard that applies to speech
restrictions in a traditional public forum, the District insists
the chalking ban is narrowly tailored to serve a significant
government interest. We agree.

First, the Defacement Statute is indisputably content
neutral. It prohibits certain conduct (i.e. disfiguring, cutting,
chipping, defacing or defiling), including certain expressive
conduct (i.e. writing, marking, drawing, or painting), without
reference to the message the speaker wishes to convey. D.C.
Code § 22-3312.01. Nor is there any evidence in the record
the District adopted the Defacement Statute “because of
[agreement or] disagreement with the message” a speaker
may convey. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
642 (1994) (quoting Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989)).

Second, the District’s interest in controlling the esthetic
appearance of the street in front of the White House is
substantial. In City Council of Los Angeles v. Taxpayers for
Vincent, the Supreme Court upheld a Los Angeles ordinance
regulating the posting of signs on public light posts. 466 U.S.
789, 806 (1984). In so doing, the Court stated that
“municipalities have a weighty, essentially esthetic interest in
proscribing intrusive and unpleasant formats for expression.”
Id.; see also, e.g., Metromedia, Inc. v. San Diego, 453 U.S.
490, 507–08, 510 (1981) (visual clutter); City of Shaker
Heights, 418 U.S. at 302 (intrusive advertising); Kovacs v.
Cooper, 336 U.S. 77, 86 (1949) (loud sound trucks
broadcasting messages). This is especially true here, where
 10
the special nature of the forum serves to heighten esthetic
concerns. See Heffron v. Int’l Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640, 650–51 (1981)
(“Consideration of a forum’s special attributes is relevant to
the constitutionality of a regulation since the significance of
the governmental interest must be assessed in light of the
characteristic nature and function of the particular forum
involved.”); White House Vigil, 746 F.2d at 1534–37
(describing the special esthetic considerations relevant to
restrictions on demonstrations at the White House).

The Defacement Statute is also sufficiently tailored to
serve the District’s esthetic interest. It is the tangible
medium—chalking—that creates the very problem the
Defacement Statute seeks to remedy. The same was true in
Taxpayers for Vincent, where the Court noted “the substantive
evil—visual blight—is not merely a possible by-product of
[posting signs], but is created by the medium of expression
itself.” 466 U.S. at 810. Undoubtedly, the Defacement
Statute encompasses some expressive activity. But “when
‘speech’ and ‘nonspeech’ elements are combined in the same
course of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms.” United
States v. O’Brien, 391 U.S. 367, 376–77 (1968). It is true, the
defacement at issue is temporary and can be cured. But the
same was true in Taxpayers for Vincent. The government can
proscribe even temporary blight. 466 U.S. at 810.

Finally, the District’s threatened use of the Defacement
Statute leaves Mahoney with alternative channels of
communication. Heffron, 452 U.S. at 655 (holding state fair
rule, prohibiting sale or distribution on fair grounds of any
merchandise including printed or written material, did not
violate First Amendment, as applied to members of a religious
 11
sect because the rule did not “unnecessarily limit” the
members’ right to speak within the fairgrounds). The District
granted Mahoney approval to conduct an assembly in front of
the White House, for which he was “permitted to possess
signs and banners.” Mahoney argues this was inadequate
because “the only thing [he] couldn’t do was the only thing
[he] asked to do.” Oral Arg. Tr. 10. But the scope of
Mahoney’s request cannot define the available “channels of
communication.” If Mahoney exclusively asked to post signs
on light posts, he could not do so under Taxpayers for
Vincent, 466 U.S. at 810. And if Mahoney asked to litter, he
could not do so under Schneider v. State, 308 U.S. 147, 160–
62 (1939). Mahoney initially requested permission to conduct
a “demonstration” consisting of “a variety of verbal and
visual messages.” The District’s threatened use of the
Defacement Statute did not curtail Mahoney’s plans.
Mahoney was free to announce any “verbal” message he
chose. And, Mahoney could depict visual messages on signs,
banners, and leaflets. Thus, ample alternative channels of
communication existed.

In sum, the Defacement Statute is content neutral, and
substantially justified by the District’s esthetic interest in
combating the very problem Mahoney’s proposed chalking
entails—the defacement of public property. Because the
District did not curtail Mahoney’s means of expression
altogether, and allowed him to protest in front of the White
House in other ways, the Defacement Statute is not
unconstitutional as applied.

III

In addition to his as applied challenge, Mahoney alleges
the Defacement Statute is facially unconstitutional. “[T]o
 12
prevail on a facial attack the plaintiff must demonstrate the
challenged law either ‘could never be applied in a valid
manner’ or that even though it may be validly applied to the
plaintiff and others, it nevertheless is so broad that it ‘may
inhibit the constitutionally protected speech of third parties.’”
N.Y. State Club Ass’n. v. City of New York, 487 U.S. 1, 11
(1988) (quoting Taxpayers for Vincent, 466 U.S. at 798).

A

We need not linger too long on whether the Defacement
Statute could ever be applied in a valid manner. As discussed
above, it is constitutional as applied to Mahoney himself.
Moreover, Mahoney only argues the Defacement Statute is
unconstitutional to the extent it applies to public property.
Oral Arg. Tr. at 25. But the statute applies to public and
private property alike. D.C. Code § 22-3312.01. And, to the
extent the Defacement Statute prohibits defacing private
property, it does not abridge the First Amendment. See Nat’l
Org. for Women v. Operation Rescue, 37 F.3d 646, 655 (D.C.
Cir. 1994) (citing Lloyd Corp. v. Tanner, 407 U.S. 551, 568
(1972)). Mahoney’s facial challenge thus hinges on whether
the Defacement Statute is overbroad. See Ashcroft v. Free
Speech Coal., 535 U.S. 234, 255 (2002); Initiative and
Referendum Inst., 417 F.3d at 1314–15.

B

Under the overbreadth doctrine, “a person may challenge
a statute that infringes protected speech even if the statute
constitutionally might be applied to him.” Ohralik v. Ohio
State Bar Ass’n., 436 U.S. 447, 462 n.20 (1978). But “the
scope of the First Amendment overbreadth doctrine . . . must
be carefully tied to the circumstances in which facial
invalidation of a statute is truly warranted.” New York v.
 13
Ferber, 458 U.S. 747, 769 (1982). To prevail, a party must
show the statute at issue “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.’”
N.Y. State Club Ass’n., 487 U.S. at 11 (quoting Taxpayers for
Vincent, 466 U.S. at 801).

Mahoney argues the Defacement Statute is overbroad
because it targets “conduct commonly associated with
expression,” and provides the District with unbridled
discretion to censor that expression. City of Lakewood v.
Plain Dealer Publ’g Co., 486 U.S. 750, 760–61 (1988). But
Mahoney fails to identify any “significant difference”
between his facial and as applied challenges. Taypayers for
Vincent, 466 U.S. at 802. Specifically, Mahoney does not
argue the Defacement Statute is unconstitutional as-applied to
any circumstances other than his own. Nor does Mahoney
argue there is a likelihood of prosecution under the
Defacement Statute that deters otherwise protected speech. In
fact, Mahoney cites no prior example of the District’s
enforcement of the Defacement Statute, constitutional or not.
And, Mahoney concedes, “the District itself sponsors and
invites citizens to come and chalk in various locations
throughout the city,” even closing off a street annually for
students to chalk. Oral Argument at 6. “The overbreadth
claimant bears the burden of demonstrating, ‘from the text of
[the law] and from actual fact,’ that substantial overbreadth
exists.” Virginia v. Hicks, 539 U.S. 113, 122 (2003) (quoting
N.Y. State Club Ass’n, 487 U.S. at 14). In short, Mahoney’s
overbreadth challenge fails because he cannot show any
“realistic danger” the Defacement Statute actually chills
constitutionally protected speech. N.Y. State Club Ass’n, 487
U.S. at 11.
 14

IV

Next, Mahoney claims the District violated his rights
under the RFRA because his efforts to chalk the sidewalk in
front of the White House were religiously motivated. The
RFRA prohibits the District from “substantially burden[ing] a
person’s exercise of religion” unless the District
“demonstrates that application of the burden to the person (1)
is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000bb-1(a)–(b); see id.
§ 2000bb-2(1)–(2) (including the District as a “covered
entity”).

The district court accepted Mahoney’s allegation that his
proposed chalking was motivated by a sincere religious belief.
But the district court rejected Mahoney’s RFRA claim
because his amended complaint did not establish chalk was
the exclusive medium through which Mahoney could express
his religious views. Indeed, the amended complaint alleges
chalk art is only “part of [Mahoney’s] public prayer vigils,
demonstrations, protests and rallies.” Complaint ¶ 56.
Mahoney argues the district court erred by narrowly focusing
on the medium—not the message. According to Mahoney the
district court should have exclusively considered (1) whether
his religious belief was sincere, and (2) whether the District’s
action substantially burdened “a religious practice” of his.

Mahoney’s novel two-step legal framework is at odds
with this court’s precedent. In Henderson v. Kennedy, 253
F.3d 12 (D.C. Cir. 2001), we explained that “to make
religious motivation the critical focus is . . . to read out of
RFRA the condition that only substantial burdens on the
exercise of religion trigger the compelling interest
 15
requirement.” Id. at 17. Henderson instead focused RFRA’s
“substantial burden” inquiry on the nexus between religious
practice and religious tenet: whether the regulation at issue
“force[d plaintiffs] to engage in conduct that their religion
forbids or . . . prevents them from engaging in conduct their
religion requires.” Id. at 16. There is an important benefit of
this latter approach. In adhering to RFRA’s plain text, it
avoids expanding RFRA’s coverage beyond what Congress
intended, preventing RFRA claims from being reduced into
questions of fact, proven by the credibility of the claimant.

The facts of Henderson are also difficult to distinguish.
There, we upheld a National Park Service regulation banning
the sale of message-bearing t-shirts in designated sections of
the National Mall, against a RFRA challenge brought by a
group of evangelical Christians. Id. In so doing, we reasoned
the ban on t-shirt sales was not a substantial burden on the
exercise of religion because it was “at most a restriction on
one of a multitude of means” by which the appellants could
engage in their vocation to spread the gospel. Id. at 17
(noting appellants could “still distribute t-shirts for free on the
Mall, or sell them on streets surrounding the Mall”). As in
Henderson, the District’s threatened use of the Defacement
Statute prohibits only “one of a multitude of means” of
conveying Mahoney’s religious message. Mahoney may still
spread his message through picketing, a public prayer vigil, or
other similar activities in which he has previously engaged.
The Defacement Statute does not realistically prevent
Mahoney from chalking elsewhere, as Mahoney concedes the
District allowed him to do in the past.

Mahoney attempts to distinguish Henderson on two
grounds. First, he argues the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) overruled
Henderson by amending RFRA’s definition of “exercise of
 16
religion” to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” But,
as the court explained when it denied the petition for
rehearing en banc in Henderson, “[RLUIPA] did not alter the
propriety of inquiring into the importance of a religious
practice when assessing whether a substantial burden exists.”
265 F.3d 1072, 1074 (D.C. Cir. 2001). Second, Mahoney
argues the regulation at issue in Henderson was a partial ban,
prohibiting the “sale” of t-shirts but not their distribution,
whereas the District’s prohibition on chalking in front of the
White House is complete. But this argument amounts to
nothing more than a word game, altering the perceived
breadth of the government restriction by narrowing the
pertinent expressive activity at issue. There is nothing in
Henderson, or in post-Henderson RLUIPA cases, that
indicates RFRA’s “substantial burden” analysis is subject to
such manipulation.

V

Mahoney claims the Defacement Statute violates the First
Amendment, both on its face, and as applied to his efforts at
chalking the street in front of the White House. But Mahoney
cannot bring a facial challenge because the Defacement
Statute is constitutional in certain circumstances, and
Mahoney points to no “realistic danger” that it will otherwise
be applied in an unconstitutional manner. Nor can we
distinguish Mahoney’s as-applied claim from the as applied
challenge rejected by the Supreme Court in Taxpayers for
Vincent. As a result, the order of the district court dismissing
this case is

Affirmed.
 KAVANAUGH, Circuit Judge, concurring:

I agree with and join the Court’s thorough and well-
crafted opinion in its entirety. As the Court holds, the District
of Columbia may prohibit defacement of Pennsylvania
Avenue in front of the White House. The prohibition is a
reasonable time, place, and manner restriction for purposes of
First Amendment doctrine.

I add these few words simply because I do not want the
fog of First Amendment doctrine to make this case seem
harder than it is. No one has a First Amendment right to
deface government property. No one has a First Amendment
right, for example, to spray-paint the Washington Monument
or smash the windows of a police car. As Justice Rehnquist
succinctly said: “One who burns down the factory of a
company whose products he dislikes can expect his First
Amendment defense to a consequent arson prosecution to be
given short shrift by the courts. . . . The same fate would
doubtless await the First Amendment claim of one prosecuted
for destruction of government property after he defaced a
speed limit sign in order to protest the stated speed limit.”
Smith v. Goguen, 415 U.S. 566, 594 (1974) (Rehnquist, J.,
dissenting on separate point). When, as here, the Government
applies a restriction on defacement in a content-neutral and
viewpoint-neutral fashion, there can be no serious First
Amendment objection. See, e.g., City Council of Los Angeles
v. Taxpayers for Vincent, 466 U.S. 789, 809-10 (1984);
Schneider v. State, 308 U.S. 147, 160-61 (1939).