Wall murals often serve to brighten neighborhoods and bring underutilized spaces to life. But many local governments frown upon this form of speech as they feel the art is sometimes too closely related to the businesses which commissioned it. Then the art becomes “commercial speech,” and is afforded less constitutional protection—even though speech is speech, and the Constitution does not differentiate between different forms. Such was the case in an IJ First Amendment law suit in Arlington, Va.
Kim Houghton is the owner of Wag More Dogs, a canine boarding and grooming facility in Arlington, Virginia. When opening her business, Kim wanted to give back to the community, so she commissioned an outdoor mural on the side of her building that faces a dog park. The mural depicted cartoon dogs, bones and paw prints, and was well received by the neighbors (and pooches) who frequented the park. But months later, Arlington officials blocked Kim’s building permit. Her crime? She had painted a piece of art that was “too related” to her business.
In the eyes of the county regulator, a mural that depicted dragons would have been perfectly fine. But because it shows dogs and bones, and that is Kim’s line of work, her mural wasn’t just speech, it was commercial speech, and it was illegal. Kim teamed up with IJ to file suit in defense of her right speak freely. Unfortunately, the courts permitted Arlington’s censorship and Kim was forced to paint over her mural.
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Further south in Chattanooga, Tenn., another mural has been vexing local officials. This mural depicts flying doughnuts and cookies, far away from the business who commissioned it, Koch Bakery. Owner Barbara Davis’s doughnuts are the stuff of legend in Chattanooga, and her mural helped bring color and life to the Southside neighborhood where it was located. Chattanooga officials felt the mural was an advertisement for her bakery, and waited until the $11,000 mural was finished to inform Barbara that her mural would need to be taken down at her expense.
As in Arlington, had the mural depicted just about anything else, there would be no issue—in fact, if the dog groomer in Virginia’s painting had shown donuts, and the Tennessee baker’s had shown dogs, you would never have heard of them.
But because the painting depicts donuts, and Barbara sells donuts, the mural was transformed from art to advertising and the city officials said it had to go. Subsequently, an outpouring of public backlash against Chattanooga’s speech regulators prompted them to back off their attempts to have the mural removed . . . for now.
In both cases, the town drew an artificial line between highly regulated commercial speech and protected forms of speech like religious symbols and political slogans. Commercial speech is done on behalf of a company or individual for the intent of making a profit. And political speech expresses a viewpoint on government, a law, or a candidate. But the First Amendment makes no such distinction.