This blog post was authored by Alexandra Haggarty, a summer clerk with Otten Johnson.  Alex is a rising 3L at the University of Colorado Law School.

A federal judge in North Dakota recently granted a temporary restraining order to enjoin the City of Mandan from enforcing a content-based ordinance regulating murals and signs.

The ordinance requires building owners to obtain a permit before displaying a sign or figurative wall mural.  A commission reviewing applications makes decisions based on guidelines and regulations, including those prohibiting murals that are commercial, have words as a dominant feature of the art, have political messages, or are on the front of the building.

The Lonesome Dove, a saloon that’s been a fixture on a main road for twenty-eight years, had until recently only decorated its exterior with beer ads.  Most recently, it had a Coors Light logo painted on the front wall.  Although the saloon never sought a permit for the logo, it was never cited for violation.  Seeking to reinvigorate its exterior, the saloon – not knowing it needed a permit – painted a 208 square-foot Western-themed “Lonesome Dove” mural on the front of the building in 2018. 

Soon after painting was complete, the city issued a citation for an “unpermitted mural” and gave the saloon options to either remove it, apply for a permit, or face a fine of up to $1,000.  The Lonesome Dove submitted a permit application but was denied at the initial and two subsequent hearings.  First, the commission determined that the mural is a “sign” because of a commercial message and needed to submit a sign application.  Second, when the saloon submitted a sign application, the city cited code prohibiting signs from being painted directly on the building in its denial.  Finally, the saloon’s appeal of the sign denial was rejected, with the city again citing code provisions prohibiting painting a sign or wall mural on a building without approval.

The court easily found that the plaintiff would likely prevail on the merits of its First Amendment claim because the City impermissibly regulated on a content-based distinction: whether the sign or mural displayed commercial speech.  Granting the motion, the court also noted that the loss of First Amendment freedoms constituted irreparable injury, the public interest lies in protecting First Amendment freedoms, the balance of equities favors the freedom of expression, and the restraining order will not impose any burdens on the city.  Notably, the court held a hearing on a preliminary injunction on June 5, but has yet to issue a ruling.

The court’s initial reaction to this case is interesting, as appellate courts have generally allowed restrictions on commercial speech that do not similarly apply to noncommercial speech.  In the event this decision is appealed, the Eighth Circuit Court of Appeals may be asked to clarify whether a local government may still regulate commercial speech to a greater extent than noncommercial speech.

Kersten v. City of Mandan, Case No. 1:19-CV-085, 2019 WL 2212381 (D.N.D. May 22, 2019).