New Hampshire Town Makes Much Ado About Muffin Mural
Leavitt’s Country Bakery has been a staple of Conway, New Hampshire, for over 45 years. When its founders recently decided to retire, longtime customer Sean Young scraped together enough money to buy Leavitt’s so it could continue as a bakery. Thanks to Sean, Leavitt’s still serves up award-winning pastries and donuts to both locals and the visitors who flock to the region for its beautiful mountain peaks. But now the bakery is embroiled in a First Amendment fight, forced to choose between self-censorship or ruinous fines.
It began last year with a simple effort to brighten up the drab blank façade above Leavitt’s front door. A friend introduced Sean to the local high school’s art teacher with the idea that the façade would be a perfect canvas for a mural by the school’s art students. Sean and the teacher heartily agreed, and the students designed and painted something delightful and fitting: a New England mountain landscape, where the mountains are made of donuts, muffins, and pastries. Sean loves it, the kids are proud of it, and locals enjoy it. Who wouldn’t?
Apparently, government officials in Conway. Just a few days after the painting was unveiled, the local code enforcer showed up to tell Sean the painting was not a mural but an illegal sign. Why? Because the painting features baked goods, which Leavitt’s sells. If it instead featured real mountains—or if the same painting were on a business other than a bakery—Conway officials would call it a mural and let it stay up.
This supposed distinction between murals and signs shouldn’t matter. After all, nothing in the First Amendment distinguishes between art and commercial signs—or commercial speech of any kind. That is why IJ has spent decades fighting to ensure that commercial speech in all its forms receives the full protection of the First Amendment. But although the Constitution doesn’t distinguish between murals and signs, Conway’s sign code does. And Sean risks $275 in fines every single day his “sign” remains up. He even faces potential criminal charges.
This isn’t the first time IJ has dealt with a local government favoring its narrow view of art over an expansive view of commercial signage. It’s common enough that we address it in our model sign code. We tried explaining to Conway that its actions were on shaky constitutional ground and even offered to help the town revise its law using our model code, but the town’s position was firmer than a 3-day-old cruller. Left with no choice but to act, IJ filed a First Amendment lawsuit against Conway on behalf of Leavitt’s, and town officials—faced with a motion for a preliminary injunction—quickly agreed to leave the mural alone while the lawsuit moves forward.
The mural at Leavitt’s may be whimsical, but the legal stakes are serious. How businesses present themselves to their communities is an important aspect of economic liberty. And although municipalities have some authority to regulate the size and placement of signs, they cannot pick and choose whom these rules apply to based on the message being conveyed. That’s just censorship—and at IJ we donut stand for it!
Betsy Sanz is an IJ attorney.
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