Seven national organizations have filed court briefs in support of Salina’s Cozy Inn restaurant in its ongoing First Amendment lawsuit against the City of Salina, after the city appealed its 2025 loss in federal court.
Owner Steve Howard of the century-old eatery sued the city in 2024 after Salina officials claimed an unfinished UFO-themed mural painted on an outside wall constituted an advertising sign that should be regulated and subject to a permit charge by the local government. The city ordered work on the mural to be halted. Howard countered that it was artwork meant to blend in with several other murals visible in the city. The Kansas Justice Institute, like The Sentinel, is a subsidiary of Kansas Policy Institute, represented Howard and his iconic restaurant, which opened in 1922 during the administration of President Warren Harding.
Kansas Justice Institute Litigation Director Samuel MacRoberts said the constitutional issue being debated is the content of speech:
“The government cannot restrict a mural simply because it contains references to the business on which it is painted. The First Amendment prohibits content-based restrictions on speech and artwork. The First Amendment does not allow the City to pick and choose which murals to allow and which to prohibit based on the message or content of the mural. But that is exactly what the City is doing here.
“At a City Commission meeting, a City official explained that a coffee shop could freely paint a mural depicting a dove and the word “peace,” because that has nothing to do with coffee, but if the coffee shop painted a mural depicting a “steaming cup of coffee and a coffee pot,” that would be regulated as a sign. But the exact same mural depicting a steaming cup of coffee and a coffee pot would be treated as an unregulated mural if it was painted on a business that did not sell coffee. But the Constitution does not allow the City to regulate speech differently based on the message conveyed or on the identity of the speaker.”
The Cozy Inn was victorious last November in a decision handed down by U.S. District Judge Toby Crouse, who found:
The plaintiffs have justified their request for declaratory relief. They demonstrated that Salina imposes an unconstitutional distinction between murals and signs. Because the definition of sign is unlawful, Salina cannot make any determination as to whether a display is a mural or sign without violating the First Amendment….. As a result, a declaratory judgment that Salina’s mural-sign distinction is unconstitutional on its face is appropriate.
The City of Salina has now appealed Crouse’s order to the U.S. Court of Appeals, a decision that has reportedly been criticized by many city residents.
Excerpts from the amicus briefs filed by the organizations in support of the Cozy Inn position:
- “The City’s arbitrary choice to allow murals (indeed, celebrate and highlight them) if they say some things but not others—based on nothing more than the fact that the latter includes some reference to trade—is unconstitutional. Salina may regulate visual expression only by applying neutral time, place, and manner restrictions, not by picking and choosing between what it considers worthy and unworthy forms of expression.” Goldwater Institute and Manhattan Institute brief.
- “Even though there are numerous murals in downtown Salina, and even though Salina holds an annual festival to celebrate the paintings and add new murals all over town, Salina contends The Cozy Inn’s ‘sign’ is uniquely harmful. That makes no sense.” Alliance Defending Freedom brief.
- “According to Salina, signs implicate safety issues and harm property values but murals do not. This is nonsensical. But for their content, The Cozy Inn’s painting and the numerous murals around downtown Salina ‘are the same thing: paint on a wall.’” Alliance Defending Freedom brief.
- “Stephen Howard knows more about hamburgers than almost anyone in Salina. Silencing his mural does not improve the City’s aesthetic landscape—it removes a knowledgeable and passionate voice from it.” Pacific Legal Foundation brief.
- “Stephen Howard has dedicated his life to The Cozy Inn, an establishment so beloved, it is described as iconic in Salina. His passion for the subject matter of his work is not diminished by the fact that it has also sustained a livelihood for him and others. If anything, his intimate knowledge of and investment in the hamburger—gained through nearly two decades of work as manager and co-owner—gives him unique insight and authenticity as a patron and commissioner of art celebrating that subject.” Pacific Legal Foundation brief.
- “The discovery concession illustrates the absurdity of Salina’s position: a wall-sized replica of Andy Warhol’s Campbell’s Soup Cans (1962) would be permissible as fine art, but a hamburger mural painted on behalf of a man who has spent years devoted to delivering award-winning hamburgers becomes regulated ‘signage.’” Pacific Legal Foundation brief.
- “The City of Salina has told Stephen Howard that he may not paint a hamburger-esque UFO-themed mural on the side of his building because hamburgers are what he sells. It has told him that were he a stranger to the hamburger—had no passion for it, no investment in it, no livelihood derived from it—he would be free to paint the same image on his property. That inversion of common sense is also an insult to the Constitution.” Pacific Legal Foundation brief.
- “The uninhibited discretion granted to Salina government officials through the expansive language of the Salina Code is a dangerous threat to First Amendment protections. Through wholly subjective and arbitrary content-based analysis, Salina officials control which messages and expressions require permits and which do not.” Liberty Justice Center brief.
- “Salina could not put forward any evidence showing how the displays it regulates as ‘signs’ implicate its safety and aesthetic interests in any different way than the unregulated ‘murals’ throughout town.” Institute for Justice brief.
- “Unfortunately, laws prohibiting murals that reflect commercial activity are not uncommon in American towns. And the burden of complying with such laws falls especially hard on small businesses, who often lack the financial resources and manpower that their larger competitors enjoy.” National Federation of Independent Business brief.
- “Navigating the arbitrary distinction that Salina’s sign code makes between an unregulated mural and a regulated sign imposes especially heavy burdens on small businesses and independent artists who lack the sophisticated compliance infrastructure and legal resources available to larger corporations. For many small businesses, the administrative costs associated with compliance and the possibility of liability in the event of non-compliance lead them to refrain from speech altogether, even if they believe their speech would be lawful.” National Federation of Independent Business brief.
MacRoberts hailed the support for The Cozy Inn from these organizations:
“We are so grateful for this overwhelming support from organizations across the country. Their briefs demonstrate, just as we have said all along, that the First Amendment does not allow the government to pick and choose which murals are allowed, and which are prohibited, because of their content.”
