Court Upholds St. Louis’s Attempt to Suppress Eminent Domain Protest Mural

J. Justin Wilson
J. Justin Wilson · March 29, 2010

Arlington, Va.—The right of free speech suffered a blow today when a federal court upheld St. Louis’s attempt to suppress activist Jim Roos’s mural protesting the city’s abuse of its eminent domain power.

“Today’s decision is a blow to the right of ordinary citizens to stand up to their government when it abuses its power,” said Michael Bindas, a staff attorney with the Institute for Justice (IJ), which represents Jim in his challenge to the city’s sign code. “If the city doesn’t want citizens conspicuously protesting eminent domain abuse, the city simply should stop engaging in it—not suppress the rights of citizens to protest.”

Roos’s saga began a decade ago, when St. Louis and its agencies began using eminent domain to take properties owned by Sanctuary in the Ordinary, Roos’s non-profit, low-income housing organization, and managed by Neighborhood Enterprises, a related housing ministry. All told, the city, took 24 properties owned or managed by Sanctuary or Neighborhood Enterprises.

Fed up with the city’s actions, in March 2007, Roos had a powerful, highly visible mural painted on the side of one of Sanctuary’s buildings that the city was threatening to take through eminent domain. The mural read, “End Eminent Domain Abuse.” But just weeks after the mural was completed, the city’s Division of Building and Inspection (B&I) cited Roos for violating the city’s sign code. According to B&I, Roos needed a permit from the city before he could protest its abuse of the eminent domain power. Roos promptly applied for a permit, which, not surprisingly, was denied by B&I and, separately, by the Land Clearance for Redevelopment Authority (LCRA)—the city agency that was threatening to use eminent domain.

Represented by IJ along with local attorney John Randall, Roos filed a pair of constitutional lawsuits in the U.S. District Court for Eastern District of Missouri challenging the permit denials by B&I and LCRA. The court dismissed Roos’s case against the LCRA, but that decision was quickly overturned by the U.S. Court of Appeals for the Eighth Circuit, which found that the LCRA had no power over Roos’s mural. The LCRA and Roos later settled that case when the LCRA issued a written apology to Roos for interfering with the city’s consideration of his permit.

Today’s ruling came in the case challenging B&I’s permit denial. The district court upheld the denial and the provisions of the city’s sign code under which B&I acted.

Amazingly, Roos’s mural would have been perfectly legal if, instead of protesting the city’s eminent domain policies, it contained a flag; a fraternal, professional or civic symbol or crest; or if the city deemed it a “work of art.” In other words, a mural of the same size, in the same location, containing the Masonic crest, Papal coat of arms, or American Bar Association symbol would have been perfectly fine. According to the court, the city could allow such signs while restricting Roos’s mural because “civic crests, works of art and flags are not the ‘stuff’ of public debate.”

“The court’s decision gets it precisely backwards,” added Bindas. “The Supreme Court has made clear that political speech like Jim’s gets the utmost constitutional protection precisely because it is the stuff of public debate.”

“For Americans of limited means, signs are often the most important, if not the only, means of effective public protest,” said William Maurer, an attorney with IJ. “Today’s decision shuts down the most effective means of protest for those harmed by the government’s abuse of eminent domain, leaving the ability to protest to only those who can afford to use TV, radio or billboards. But these are precisely the types of people who are not often targeted by the city of St. Louis for eminent domain abuse.”

IJ and Roos plan to appeal the court’s decision to the U.S. Court of Appeals for the Eighth Circuit.