Wall art and murals are some of the most cost-effective ways a small business can exercise their right to free speech and communicate with the public. But in many cities, outdated sign codes and ordinances can heavily restrict or even outright ban wall art with text or images that relate to a specific business. As a result, many business owners are forced to choose between their First Amendment rights and their right to earn an honest living.
But the government cannot treat some speech better than others, depending on its message and content. The First Amendment prohibits the government from playing art critic, telling people to change their mural’s message or discriminating against business’s speech.
This principle was recently affirmed by none other than the U.S. Supreme Court. In its 2015 decision, Reed v. Town of Gilbert, the Court struck down a sign code passed by Gilbert, Arizona. That sign code blocked a church for putting out signs informing the public about their religious services. But the town’s sign code allowed identical signs concerning political campaigns and other topics.
The Supreme Court declared that this kind of discrimination, based on the speech’s message, triggered the most searching scrutiny possible—called “strict scrutiny.” Under strict scrutiny, the code could only survive if the town proved it was absolutely necessary to serve a compelling government interest.
Gilbert didn’t. Not only was there no evidence that the church signs hurt the public in any way, but there was no reason to think that the church signs would be any more likely to hurt the public than any other type of sign.
Under the First Amendment, the right to speak is just that—a right—not a privilege to be doled out by government officials.
Is Your City Cracking Down on Your Wall Art or Mural?
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