The owner of the Cozy Inn in Salina, Kansas has won another major court victory in his quest to paint a hamburger mural on the outside of his burger restaurant. The 10th Circuit Court of Appeals today affirmed a lower-court ruling that the City of Salina violated his First Amendment rights by ruling the mural a regulated sign.
Owner Steve Howard filed the lawsuit with help from Kansas Justice Institute in early 2024 after Salina officials told him to stop painting the mural. Salina considered the artwork a regulated sign instead of an unregulated mural. That’s because, according to Salina, the mural depicted UFOs that looked too much like hamburgers, The Cozy’s signature item. The Cozy Inn has been a Salina institution for over a century, serving hamburgers from its small storefront since 1922. Kansas Justice Institute, like The Sentinel, is owned by the Kansas Policy Institute.
“Salina is my hometown; I love it here,” Howard said in a release from Kansas Justice Institute. “The reason I love this community, this town, is because of all of the support everyone has given me. Thank you for standing behind me and supporting me through this.”
Cozy Inn suit draws national attention
The decision has implications far beyond The Cozy Inn and its mural. The court made clear that when the government tries to regulate speech, artwork, or expression, it must have hard evidence supporting its speech restrictions, not mere speculation.
Cities across the country attempt to restrict speech through sign codes just like Salina’s, which is why this case has attracted national attention, drawing friend-of-the-court briefs supporting The Cozy’s First Amendment challenge has drawn friend-of-the-court briefs from the National Federation of Independent Business, Institute for Justice, Pacific Legal Foundation, Liberty Justice Center, Alliance Defending Freedom, and a joint brief from Goldwater Institute and Manhattan Institute.
“Salina’s code would have allowed Steve to paint a mural depicting flying pizza slices, but not burger-esque UFOs, just because The Cozy sells sliders,” KJI Director of Litigation Sam MacRoberts said. “We’ve said from the very beginning that Salina’s code — and the way it was enforced — was unconstitutional.”
The City of Salina argued that its sign regulations were permissible under the First Amendment because they were “content neutral.” However, the city objected to the mural’s content — hamburgers on a hamburger restaurant.
Moreover, the court found the code was too broad.
“The sign code lists as its purposes traffic and pedestrian safety, aesthetics, and property values,” the court wrote. “Mr. Howard and Cozy Inn do not dispute the significance of these interests. Neither do we. But the fact that Salina’s interests are ‘substantial in the abstract do not allow it to justify any regulation simply through talismanic invocation of that interest.
“The sign code must also be narrowly tailored to achieve those interests.”
Additionally, the city code requires a decision on a permit for a mural or a sign within 10 days — Howard has been waiting approximately three years.
“Salina’s evidence failed to justify the distinction between regulated signs and unregulated murals,” The court wrote. “It did not show that signs pose greater danger to Salina’s interest in safety, aesthetics, and property values. Given that Mr. Howard’s application has aged for three years without his consent, Salina imposed a prior restraint on his speech.”
MacRoberts said he was pleased with the ruling.
“This ruling makes it clear to all of the cities in Kansas: quit playing art critic,” MacRoberts said.
“I’m incredibly proud of Steve for standing up for his First Amendment rights. And I’m so happy the mural gets to stay up — it’s an awesome piece of artwork. Salina’s mural scene is better off for it.”
