Augie and Brian, as good citizens, dutifully applied for a mural permit. But Mandan officials stymied Augie and Brian at every turn. The city said that because Lonesome Dove’s name appeared in the artwork, it couldn’t be a mural, since murals could not be “intended to advertise an establishment.” Nor could Lonesome Dove get a sign permit, since commercial signs couldn’t be painted on a building’s walls. After a five-month ordeal, Augie and Brian were told to remove the mural by May 23, 2019, or face thousands of dollars in fines.
But Augie and Brian had a different idea. Teaming up with the Institute for Justice, Augie and Brian filed a lawsuit against the city of Mandan to save their mural and vindicate their rights to free speech under the U.S. Constitution. The First Amendment prohibits the government from playing art critic, telling people to change their mural’s message or discriminating against business’s speech.
A federal court readily agreed, holding that Mandan would likely lose the case and ordering the city not to fine Lonesome Dove while the lawsuit proceeded. Reading the writing on the wall, Mandan rewrote its entire mural code to remove the arbitrary and unconstitutional provisions that had stymied Augie and Brian. In that same rewrite, Mandan agreed that Lonesome Dove’s mural could stay up, no government permission slip needed.
Augie and Brian’s advocacy saved not only their mural, but improved the free-speech rights of everyone in city. And their victory should serve as a warning to other cities that think they have the power to pick and choose who may speak and about what. Under the First Amendment, the right to speak is just that, a right, and not a privilege to be doled out by government officials.
Mandan, ND Mural
May 21, 2019
Federal District Court for the District of North Dakota Western Division