Fourth U.S. Circuit Rules Governments Can Play Art Critic

J. Justin Wilson
J. Justin Wilson · May 22, 2012

Arlington, Va.—Today, the Fourth U.S. Circuit Court of Appeals denied a First Amendment challenge to a local sign ordinance brought by an Arlington County small-business entrepreneur. This ruling reinforces the notion that local governments can play art critic, further cementing a fundamental disagreement on free speech between the federal courts that ultimately will have to be resolved by the U.S. Supreme Court.

“Today’s decision lets Arlington County officials continue to violate the Constitution by playing art critic,” said Robert Frommer, IJ attorney and lead counsel on the lawsuit. “This opinion shows why it is essential to have an engaged judiciary that will uphold Americans’ constitutional rights by closely scrutinizing abuses of government power.”

Kim Houghton filed her First Amendment lawsuit in December 2010 against local officials who wanted her to take down a playful mural that she had painted on the back wall of Wag More Dogs, her canine boarding and grooming facility. After the Arlington County’s zoning administrator decided that Kim’s mural of happy cartoon dogs had a “relationship” with her business, the County forced her to cover it up or close her business.

In its opinion, the Fourth Circuit ruled in favor of the sign law because Arlington County was not using it to single out messages that the County did not like. The court further ruled that Arlington officials did not have to present any evidence to justify their restriction on Kim’s free speech rights.

“The First Amendment protects our right to free speech,” said Robert McNamara, an IJ attorney. “The government must always present evidence whenever it restricts this basic right. Today’s decision turns that principle on its head.”

“I’m deeply disappointed about today’s ruling,” said Kim Houghton. “All I wanted to do was share my artwork with the community. I wish that the court was more concerned about protecting our freedom of speech than protecting Arlington County’s sign law.”

Kim and the Institute for Justice are weighing their options and considering whether to appeal today’s decision to the U.S. Supreme Court.