Sing us a Song, You’re the Potato Man

The Potato Man lives, but he almost got mashed. The cheerful, anthropomorphic mascot of the Potato House restaurant had been threatened by the Downtown Revitalization Board of Sulphur Springs, Texas. His smiling mug didn’t fit their image of the downtown. But after locals rallied to his defense, the city relented and allowed him to stay.

Sadly, other charming signs have come under attack, and not all of them have been so lucky. Frolicking dogs, flying donuts, a purple octopus, soldiers in front of the American flag, and a ham sandwich have all faced the ire of local governments.

None of these murals were targeted because they were too big or too distracting to motorists. They were targeted because of what they depicted.  Often, code enforcement or city councilors felt the murals had crossed the line from purely artistic to commercial advertising, a category of speech often given less protection in court.  For example, the owner of Wag More Dogs, a dog grooming business in Arlington, Virginia, was told by the county that her mural of happy dogs chasing bones was not allowed because it was “too related” to her business.  If Wag More Dogs had instead depicted dragons, the county would have had no problem with the mural.

Arlington’s sign code exempted “works of art” from all regulation, but required “signs” to abide by strict size limits. Because local officials called the shots on what qualified as art, they were left with the power to subjectively decide—based solely on what the mural depicted and who put it up—whether the mural could stay up or had to be covered up.

Fortunately, it may not be this way for much longer.  In a recent Supreme Court decision, Reed v. Town of Gilbert, the Court ruled that as long as a sign conforms to neutral regulations on size and location, a law that attempts to restrict that sign because of its subject matter faces “strict scrutiny”—a standard the law is unlikely to survive.  Previously, many lower courts had held that restrictions discriminating between broad categories of speech—like “signs“ versus “works of art”—should be judged under a lesser standard than strict scrutiny if the government’s motivation for the restrictions was not specifically to stifle speech. In Reed, the Supreme Court correctly held that even speech restrictions passed for the best of reasons are subject to strict scrutiny if they discriminate based on the content of speech. The upshot of the decision is that code enforcement officers no longer get to play art critic.

The Court has signaled that it’s serious about ending the false distinction between categories of speech. Days after Reed, the justices sent an IJ case back to the 4th Circuit and instructed the lower court to get it right this time. In that case, the city of Norfolk, Virginia, had targeted a large banner on the side of a business protesting the city’s attempt to seize it through eminent domain. Had a similarly sized and placed banner depicted a religious emblem instead of a criticism of a city policy, the city sign code would have allowed it. Had Reed arrived in time, the same circuit court may have saved Wag More Dogs’ mural instead of siding with Arlington County.

The bottom line is that Reed v. Town of Gilbert is a bad sign for cities and towns that really think it is the government’s business which cartoon animals or vegetables adorn local businesses. The Sulphur Springs Downtown Revitalization Board should be glad they abandoned their attack on the Potato Man, because they could have found themselves in hot water.

— Walker Mulley

Walker Mulley is a Maffucci Fellow at the Institute for Justice

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