The City of Salina unconstitutionally restricted the free speech of a century-old hamburger restaurant when it decided UFO-themed artwork on the outside wall of the Cozy Inn was a sign subject to city code, instead of an unregulated mural.
The decision by U. S. District Judge Toby Crouse was hailed by free speech advocates, Cozy Inn owner Steve Howard, and the Kansas Justice Institute (KJI), like The Sentinel, a subsidiary of the Kansas Policy Institute.
The KJI represented Howard and the Cozy Inn, a Salina landmark since its opening in 1922. The saga began two years ago when the city had
almost comically determined that the flying saucers in the extraterrestrial artwork looked too much like flying hamburgers, and such, qualified as an advertising sign to be regulated and enforced by the city. Howard had commissioned the painting so his business could add to a burgeoning art scene in the city, according to the judge’s order.
Samuel MacRoberts is KJI’s Litigation Director:
“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.That’s not just unfair, it’s unconstitutional.”
MacRoberts added: “It’s textbook content-based discrimination and the First Amendment doesn’t allow that. We’ve been consistent since day one, Salina’s code—and the way it was enforced—was unconstitutional.”
Cozy Inn court ruling
In his ruling, Judge Crouse 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 plaintiffs have also supported their request for a declaratory judgment finding that Salina imposed an unconstitutional prior restraint as applied to their speech. By applying that restraint, Salina has subjected the plaintiffs to a constitutional harm since it put Howard’s permit application on indefinite hold. Declaratory relief to address that harm is warranted.
MacRoberts concluded:
“The ruling is clear, to the point, and correct. Salina’s officials don’t get to play art critic, picking and choosing which murals stay, and which go. The right to free speech doesn’t work that way and never has. At the end of the day though, because of Steve and The Cozy, Salina’s mural-scene just got a little bit better.”
KJI is a free public interest law firm that fights back against government overreach. This case is part of KJI’s litigation campaign challenging laws that interfere with the right to free speech. It’s also part of KJI’s litigation efforts to fight back against city hall.
