The Goldwater Institute filed a brief in the Tenth Circuit Court of Appeals today urging the judges to uphold the free speech rights of businesses against a bizarre ordinance in Salina, Kansas, which allows people to have “murals” on their buildings, but not “signs.” What’s the difference? According to the city, it’s that a sign “directs people’s attention” to things, whereas a mural…doesn’t. But that isn’t true. As we point out in our brief, murals “direct attention” to all sorts of things. The real difference is that the city doesn’t want you to direct attention to commerce. And that’s where the real problem lies.
For decades now, courts have tended to discriminate against business in a wide variety of ways. One of the most upsetting is the way courts allow restrictions on the free speech of businesses and their owners that would never be tolerated with respect to any other kind of speech. Years ago, federal courts manufactured a theory of “commercial speech,” that allows the government to restrict what businesses can say—and the result in many cases has been the unfair censorship of businesses. Perhaps the most extreme example is Nike v. Kasky, a two-decade old case in which the California Supreme Court held that Nike could be sued under state law for expressing its position on a political issue.
The Salina case involves Steve Howard’s burger joint, called the Cozy Inn. Howard started painting a mural on the side of his building that encourages people to come in and get burgers. It portrays the burgers as spaceships having a sort of Star Wars battle with mustard and ketchup.
And you might not think that’s a problem, given that Salina has many murals. In fact, the city is quite proud of its murals. Not just proud—it has an annual mural festival, where it invites artists to come in and paint murals, and its website features pictures of the city’s many different murals. But city officials decided that Steve’s mural was not allowed…because it’s a sign, instead of a mural, and that means it’s subject to all sorts of different rules. Steve sued—represented by our friends at the Kansas Justice Institute—and won; the judge declared the city’s actions unconstitutional. Now the city has appealed.
Salina’s excuse is that signs “direct attention” to things, so that makes them different from murals. But many of the murals in town already direct attention to things—including one that literally depicts a person aiming a camera at the train tracks next to the building. What the city’s really doing is banning people from expressing themselves about business. And that’s unconstitutional. The U.S. Supreme Court declared, in a case called Sorrell v. IMS Health that the government cannot discriminate against speech based on its “commercial motive.”
Our brief—joined by our friends at the Manhattan Institute—takes an entertaining tour of art history, exploring how art and commerce have been intertwined for centuries. Artists as celebrated as Georgia O’Keefe, Alphonse Mucha, and Maxfield Parrish painted commercial advertisements which have become treasured works of art. And the murals the city has deemed “non-commercial” are sometimes actually based on advertising styles and are designed to advertise things. The only real difference is that the city doesn’t want people speaking from a commercial motive.
Business speech isn’t a trivial thing. Not only is advertisement critical to the survival of any business—and thus to the pursuit of happiness—but advertisements and other kinds of commercial speech deeply enrich our lives and the vibrancy of public discussions in our society. For courts to draw lines between what kinds of speech are allowed and what are not is a dangerous intrusion on the freedom of expression—and it’s time for courts, and cities, to start respecting everybody’s right to speech.
You can read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
