Institute for Justice · May 23, 2019

Wednesday afternoon, a federal judge issued a temporary restraining order to protect the mural of a North Dakota saloon, Lonesome Dove, from immediate removal. Lonesome Dove filed a lawsuit against the city on Monday after the city ordered the bar to either remove the mural by May 23 or suffer thousands in fines. In issuing the order, the judge found that the city’s enforcement against the mural had likely violated Lonesome Dove’s free speech rights. Lonesome Dove is represented by the national nonprofit law firm, the Institute for Justice.

Lonesome Dove is owned by Brian Berube and August “Augie” Kersten. Both men said they were happy about the order but understand that their lawsuit is far from over.

“I think it’s a step in the right direction. It gives us time to not have to worry about covering up our mural,” Brian said. “I’m more fired up than I was before,” he added.

Brian and Augie hired an artist to paint the mural to improve the appearance of their building last summer. The mural shows 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. Over the years, Mandan has developed a litany of arbitrary regulations that allow the city to carefully control the content of murals. The city bans any mural with a “commercial message,” including any mural that contains the name of a business. Mandan also 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 requires all murals to apply for a permit, a process the city uses to play art critic, ordering changes to planned murals to suit the city’s liking. The city has enforced these regulations against multiple local businesses, with Lonesome Dove as the latest victim.

“We are pleased that for now, our clients will be able to exercise their First Amendment rights and keep up their mural,” said Institute for Justice 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.”

In ordering the injunction, U.S. District Court Judge Daniel Hovland seemed to agree. The Court said that Mandan’s ban on commercial murals is “clearly not content neutral,” noting that the Supreme Court has struck down multiple restrictions that discriminated against commercial speech. “Commercial speech is valuable and serves an important public function,” the order continued. “Such a content-based restriction on speech as Mandan has enacted is unlikely to survive constitutional muster.”

The Court also scheduled a hearing in the case on June 4 to consider the next steps in the litigation.

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.