The First Amendment does not let government officials play art critic.
But that’s what officials in Mandan, North Dakota, have been doing. The city mandates that anyone who wants to display a mural first secure its permission. And to get that permission, Mandan requires applicants to change their mural’s design, color and content. The city blocks murals from appearing on the front of buildings out of fear they may provoke too much thought. And it prohibits murals from having anything to do with the businesses displaying them. August “Augie” Kersten and Brian Berube, owners of the Lonesome Dove saloon, are the latest victims of the Mandan sign code.
Augie and Brian commissioned a mural for the front of their 28-year-old dance hall and saloon to make it more attractive. It shows the sun setting over the mountains with a ranch and cowboys scattered across the landscape; artistically rendered across the top are the words, “Lonesome Dove.” The mural generated compliments and new foot traffic. But it also generated a notice of violation from Mandan, which chided Augie and Brian for displaying art on their own property without first getting the city’s OK.
Augie and Brian, as good citizens, dutifully applied for a mural permit. But Mandan officials stymied Augie and Brian at every turn. The city said that because Lonesome Dove’s name appeared in the artwork, it couldn’t be a mural, since murals could not be “intended to advertise an establishment.” Nor could Lonesome Dove get a sign permit, since commercial signs cannot be painted on a building’s walls. After a five-month ordeal, Augie and Brian now must remove the mural by March 23, 2019, or face thousands of dollars in fines.
To vindicate their rights to free speech under the U.S. Constitution, Augie and Brian have filed a lawsuit against the city of Mandan to save their mural. The First Amendment prohibits the government from playing art critic, telling people to change their mural’s message or discriminating against business’s speech. They are represented by the Institute for Justice, which has fought similar fights across the nation to vindicate the idea that, under the First Amendment, the right to speak is just that, a right, and not a privilege to be doled out by government officials.