Dan King
Dan King · January 31, 2023

CONWAY, N.H.—A bakery owner filed a federal lawsuit against the town of Conway, New Hampshire, on Tuesday after officials demanded he paint over a mural that local high school students created last summer. Leavitt’s Country Bakery owner Sean Young teamed up with the Institute for Justice (IJ) to file the lawsuit, which argues that Conway’s sign code violates his and other town residents’ First Amendment rights. 

Leavitt’s is a Conway institution. For more than forty years, it has been a community gathering spot that some have called the “unofficial town hall of Conway.” So when Sean purchased the bakery in 2021 from Beth and Ray Leavitt with the goal of keeping the popular establishment as a go-to place for members of the Conway community, people were overjoyed.  

Leavitt’s is so loved that a group of Kennett High School students offered to paint a mural for the business. The students decided that the mural should depict a colorful mountainscape of baked goods with the sun rising behind them, in honor of the nearby White Mountains. The mural, which was unveiled in June 2022, became an instant hit with Leavitt’s customers. 

But it isn’t as popular with Conway’s assistant building inspector. Less than two weeks after the mural was painted, the inspector visited the bakery and informed Sean that because the mural depicts donuts and scones, and Leavitt’s is a bakery, the mural is considered a “sign” subject to the town’s strict regulations. And while the town ordinance allows Leavitt’s only about 22 square feet of total signage, the mural painted by the students measures about 91 square feet. 

“Government bureaucrats don’t get to play art critic and decide what is and isn’t art,” said IJ Senior Attorney Rob Frommer. “Leavitt’s could legally have a mural the exact same size if it didn’t show any items they sell. That makes no sense and violates the First Amendment.” 

The assistant building inspector informed Sean that he could apply for a variance to keep the mural up. When Sean did so in September 2022, he had the backing of Conway residents: More than 1,000 people commented on Leavitt’s Facebook page in support of the mural and scores of letters to the editor have been published in the Conway Daily Sun arguing that the mural should stay. Yet the Conway Zoning Board of Adjustment (ZBA) voted unanimously against granting the bakery a variance. Then, in November, the ZBA doubled down, again denying the variance.  

“I couldn’t believe the town was going after me for giving high school students a way to express their artistic passions and contribute something fun and delightful to the community,” Sean said. “This mural isn’t hurting anyone. If anything, it has brought the community together.” 

Trying to right this wrong and avoid litigation, IJ sent a letter to Conway officials in December 2022 urging town officials to back off Leavitt’s. As IJ’s letter explained, the town’s sign code was both confusing and unconstitutional. Although IJ offered to help the town craft a new sign code, it refused the offer, instead sending Sean yet another letter ordering him to either get a sign permit or take down the mural forever.  

“Leavitt’s mural is beautiful and showcases what can be accomplished when a community comes together,” IJ Litigation Fellow Betsy Sanz said. “Conway’s crackdown on this artwork serves no legitimate government interest.”  

IJ’s fight against similar violations of the First Amendment rights of small business owners throughout the country includes a 2020 victory that allowed a North Dakota saloon to keep up its mural, a 2017 win for a Florida video game store that wanted to display an inflatable Mario in front of its store, and a 2013 ruling which permitted a California gym to advertise on a sandwich board out front.