Institute for Justice · May 21, 2019

Last fall, August “Augie” Kersten, co-owner of the Lonesome Dove saloon in Mandan, North Dakota, decided to brighten up his building with a mural. Other businesses in town have murals, and Augie thought it would be just the thing to bring color and character to the otherwise drab and industrial area where his business faced the highway. He had no idea that, by doing so, he would be entering into a five-month bureaucratic nightmare where his own city would threaten him with court proceedings up to a thousand dollars in fines. Now, Augie, his business partner Brian Berube, and the Lonesome Dove have joined with the nonprofit law firm Institute for Justice (IJ) to sue in federal court to protect both their mural and their right to free speech.

“It is just the principle of the thing,” said Augie. “I can’t believe the city can have that much control over a building we own. It just ain’t right.”

Augie and Brian started Lonesome Dove 28 years ago. Over the years, the saloon has become a second home for cowboys and other locals searching for good music and good company. But Lonesome Dove was showing its age, and Augie and Brian wanted to give the place a facelift. So they paid one of their waitresses, also an artist, to paint over a Coors Light logo that had adorned the front of the building for over a decade. In its place, she painted a sun setting over the mountains, with a ranch and cowboys scattered across the landscape. Artistically rendered across the top of the mural are the words, “Lonesome Dove.” The mural brought in new customers and many compliments. Everyone seemed to like it.

Everyone but city officials, that is. Soon after the employee finished painting the mural, Augie and Brian received a notice of violation. According to the city, the mural lacked a “mural permit” and Lonesome Dove would have to pay to apply for one. Over the next five months, Lonesome Dove had to submit two separate permit applications for the mural and undergo three hearings. Ultimately, the city commission decided the mural was illegal under its mural regulations and ordered it removed by May 23. The city denied the permit because its guidelines state “no mural may be placed on the front of a building” and “no mural shall convey a commercial message.” There’s just one problem with Mandan’s guidelines: they are blatantly unconstitutional.

“The First Amendment prohibits Mandan from acting like the ‘mural police,’” said IJ attorney Erica Smith. “Murals are a form of free speech and the First Amendment doesn’t let the government say what speech is OK and what isn’t.”

For those who were familiar with Mandan’s mural regulations, the Lonesome Dove’s bureaucratic saga is no surprise. Over the years, Mandan has developed a litany of arbitrary regulations that allow the city to carefully control the content of murals. The city’s ban on “commercial messages” includes anytime a mural contains the name of a business. In addition, Mandan bans murals on the front of buildings, because—as the city admitted—it wants to hide murals that may be “political,” “controversial,” or “provoke thought.” Finally, the city uses the mural-permit process to play art critic, ordering changes to planned murals to suit the city’s liking.

Lonesome Dove and the Institute for Justice filed suit in federal court on May 20, three days ahead of Mandan’s deadline for the mural’s removal. The lawsuit seeks to not only protect Lonesome Dove’s mural, but also to free all residents of Mandan from the city’s unconstitutional mural restrictions.

“We are not going to take the mural down until we have to,” Augie said. “We won’t go down without a fight.” Augie added that he was touched by all the support Lonesome Dove has received from the community for the mural, including many phone calls and visitors. “It just makes you feel real good.”

Although the city commission is considering changes to its mural regulations, the draft changes would neither allow Lonesome Dove’s mural to stay nor fix the regulation’s current constitutional problems. The current draft of the regulations still restricts “commercial” murals and bans murals in the front of buildings.

The Institute for Justice is a nonprofit law firm dedicated to protecting Americans’ constitutional rights. Recently, IJ successfully defended a Florida business owner’s right to display an inflatable Mario outside his video game store. IJ also won a free speech case in Colorado where town officials sued a mom for buying a political ad in a newspaper.