July 30, 2012
Have you ever seen a pair of squirrels paddling a canoe made out of a beer can? If you live in Northeast Minneapolis, you may have, as a mural painted on the side of a local bar. But that mural, and others like it, are subject to removal under city ordinances.
Across the country, cities have developed different guidelines for what they consider permissible and impermissible advertising and signage. Communities may want to preserve a historic character or community aesthetic. But in the case of murals, it can be hard to draw a line between artistry and advertising. In All State & Federal materials, I searched on WestlawNext for the following terms:
ordinance “first amendment” mural advertisement
Cases have come down on both sides of this issue. In Complete Angler v. City of Clearwater, 607 F. Supp. 2d 1326, the court found that a mural on the side of a bait shop was protected non-commercial speech where it depicted local natural habitat, waterways, and protected species. The court observed, “The fact that a speaker is a corporate entity does not render its speech per se commercial” as commercial speech is usually defined as merely proposing a commercial transaction or relating solely to economic interests. Restrictions on non-commercial speech must pass strict scrutiny, and the city was unable to prevail. You can find a photo of the mural along with some discussion of the aftermath in this article.
The court took a different approach in the Ohio case Tipp City v. Dakin, 929 N.E.2d 484. There, a mural was found to be commercial speech where it depicted a “mad scientist,” with exploding beaker in hand, on the side of the building for a seller of nitrous oxide. Because this was commercial speech, the court applied an intermediate standard of review. Although the court found the city’s ordinance that limited advertising signage to be constitutional as applied in this instance, the court found that portions of the ordinance were facially overbroad and content-based; and those provisions were unenforceable and non-severable.
On the flip side, a Virginia county ordinance was upheld under intermediate scrutiny. Wag More Dogs, LLC v. Artman, 795 F. Supp. 2d 377. There, the subject of the litigation was a mural of dogs painted on the side of a canine grooming and boarding business, which incorporated cartoon dogs from the business’s logo. The court found that this mural was commercial speech and was properly considered a “business sign” under the city’s ordinance. The public purposes set forth in the zoning ordinance were held substantial government interests — including reducing the traffic hazards presented by distracting and confusing signs and protecting the character of neighborhoods — and the ordinance was properly tailored to meet those interests.