July 22, 2019

The First Amendment protects the right of all Americans to speak freely on topics that matter most to them—from business to politics to any other subject. It does not allow government officials to pick and choose who gets to speak and what those speakers can and cannot say. Yet that is exactly what officials in Mandan, North Dakota, have been doing by aggressively enforcing the city’s sign code.

Mandan, like many cities across the country, has a sign code that unconstitutionally discriminates against speech that promotes a business. Over the past two years, local bureaucrats have used these sign regulations to play “mural police,” threatening entrepreneurs in their town with thousands of dollars in fines for code violations.

One victim of this unconstitutional speech policing is August “Augie” Kersten, owner of the Lonesome Dove saloon and dance hall. Augie incurred the wrath of Mandan officials when he decided to spruce up one side of his aging saloon by covering up an old beer logo with a beautiful, sunset-colored mural painted by a local artist. The mural brought in new customers and many compliments, but two words on the painting sparked a bureaucratic nightmare for Augie: “Lonesome Dove.” Because Augie had painted the name of his business on his own building, the city of Mandan labeled the mural “illegal advertising” and threatened him with thousands of dollars in fines unless he removed it.

Augie’s was just one of several local businesses subjected to such harassment. In May, IJ came to their rescue and sued the city in federal court for violating the First Amendment. Within 48 hours, we won a resounding victory. In a 10-page opinion recognizing that “commercial speech is valuable and serves an important public function,” the court issued a rare temporary restraining order (TRO) compelling the city to stop enforcing its sign code against Augie and other businesses while IJ’s case proceeds.

Read more about IJ’s case here.

This opinion is a big deal, and not just because it protects our clients while we continue fighting for ultimate victory. Even though the U.S. Supreme Court has called “content-based” sign restrictions unconstitutional, lower courts have been reluctant to apply that doctrine to restrictions on commercial speech. There was no such reluctance in this case, and IJ will rely heavily on this court’s ruling as we take our fight for the free speech rights of entrepreneurs to more and more cities across the nation.

Erica Smith is an IJ attorney.

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