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Victory for Art in Mandan, ND: Lonesome Dove’s Lawsuit Against City Comes to an End

The lawsuit saved Lonesome Dove’s mural, led Mandan to enact a speech-friendly mural law, and showed that one business can stand up to City Hall.

Mandan, N.D.—Today, the lawsuit brought by Lonesome Dove saloon owners Brian Berube and August “Augie” Kersten has formally come to an end. Along with the Institute for Justice (IJ), Brian and Augie sued Mandan for trying to ban their mural because it was “intended to advertise an establishment.” Not only did their lawsuit save Lonesome Dove’s mural, it led Mandan to enact a new ordinance that lets residents and businesses put up their own murals throughout town. Today’s victory should be a warning to other municipalities that use their sign codes to play art critic.

In fall 2018, 27 years after Augie and Brian started Lonesome Dove, they hired an artist to paint a sun setting over the mountains, with a ranch and cowboys scattered across the landscape. The artist painted the words “Lonesome Dove” across the top. Everybody seemed to like it, until city officials gave Augie and Brian a citation for not previously getting a mural permit. But when they applied, they were told that there was no permit for them.

That’s because Mandan’s sign code said that “no mural shall convey a commercial message.” Brian and Augie kept trying to get permission for their mural to stay up, but to no avail. Left with no other option, and determined to protect their rights as business owners, Brian and Augie joined forces with IJ to stop Mandan’s unconstitutional restriction on free speech.

Almost immediately, Brian and Augie started seeing results. Two days after launching their lawsuit in May 2019, a federal court ordered that Mandan not issue thousands of dollars in fines against Lonesome Dove for keeping up its mural. In that order, U.S. District Court Judge Daniel Hovland said, “Such a content-based restriction on speech as Mandan has enacted is unlikely to survive constitutional muster.” Seeing the writing on the wall, Mandan enacted a new ordinance in November 2019 that no longer restricts murals displaying commercial messages and makes it easier for others who want to express themselves to put up murals of their own.

“Today’s victory is a win for not just Lonesome Dove, but the First Amendment and the people of Mandan,” said IJ Senior Attorney Robert Frommer. “Everyone now can speak a bit more freely due to Brian and Augie fighting for their free speech rights. And cities in North Dakota and across the country should take heed: if you discriminate against commercial messages like Brian and Augie’s mural, you too might find yourself in court.”

“We hope everyone can enjoy putting murals without having to go through what we went through,” said Augie, with Brian celebrating that “everyone that wanted to have a mural can have one now.”

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 Norfolk, Virginia, where the city tried to use its sign code to force a small business to remove a protest banner condemning the government’s attempt to take its property through eminent domain.

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