Tenth Circuit Strikes Down Salina’s Arbitrary Ban on Signs

A three-judge panel of the Tenth Circuit Court of Appeals struck down a Salina, Kan., ordinance that senselessly restricts the kinds of signs that can be displayed in the city. Bizarrely, the city treats murals differently from signs painted on the sides of buildings—the only difference being whether the painting “directs attention” to a business. After a local restauranteur was told he couldn’t paint the side of his hamburger joint with amusing pictures of burgers engaged in a Star Wars-like space battle, he sued, represented by our friends at the Kansas Justice Institute—and we filed a friend of the court brief supporting him.

We pointed out that the city is not only full of murals, but actually hosts an annual mural competition—and many of those murals (which, again, don’t require any kind of license or permit) “direct attention” to things. To discriminate against a form of expression—fully protected by the First Amendment—based on whether it “directs attention” to a business is clearly unconstitutional. And the Tenth Circuit agreed.  “Salina’s evidence failed to justify the distinction between regulated signs and unregulated murals,” wrote the judges.  “It did not show that signs pose greater danger to Salina’s interest in safety, aesthetic, and property values.”

The most extraordinary part of the decision concerns the city’s unusual effort to defend the ordinance based on “neuroscience” that supposedly proves that people experience “positive amplitude from … viewing artwork,” and “negative responses from viewing commercial symbols.” Of course, this is simply not true—as our brief pointed out, many works that are now considered artistic masterpieces, such as the works of Alphonse Mucha, Georgia O’Keeffe, and Maxfield Parrish, were actually created as advertisements. And the court saw through this silly argument pretty quickly: The city’s supposed expert on neuroscience “provided no evidence or explanation for … why Cozy Inn’s proposed sign threatened Salina’s safety, aesthetic, and property value interests more than Salina’s many unregulated displays, such as the baseball mural at a baseball training facility or the ‘Symphony of Sunflowers’ mural at the orchestra hall.”

The decision is a welcome victory for free speech. Unfortunately, bureaucrats across the country continue to treat speech by businesses differently from speech by others—and, sadly, some court decisions have also claimed that so-called “commercial” speech is entitled to less constitutional protection than “non-commercial” speech. There’s no basis for this in the Constitution, and the distinction would have bewildered the founding fathers, who often blended “commercial” and “non-commercial” speech together. Worst of all, the very idea of distinguishing these two categories of speech is inherently a form of discrimination against certain types of speech—which is just what the First Amendment forbids.

This win is an important step in protecting speech—but a lot remains to be done.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.