Tory Jackson

Tory Jackson

When the owners of the Lonesome Dove bar in Mandan painted a Western-themed mural on the front of their building, they likely didn’t expect it would lead to a lawsuit in federal court. But after months of applications, hearings and denials, the owners sued the city of Mandan in a final effort to keep their mural.

The Lonesome Dove mural violates a city ordinance that prohibits murals with commercial content and bans murals from the fronts of buildings. The owners claim the mural ordinance violates their free speech rights under the First Amendment, which provides that “Congress shall make no law … abridging the freedom of speech” (though the First Amendment specifically mentions Congress, it applies to all levels of government).

The lawsuit is currently in a holding pattern as the parties discuss a settlement. The city would be wise to settle, as its ordinance has serious constitutional flaws.

The mural ordinance is likely unconstitutional because it contains a “content-based restriction” -- it excludes certain types of content or subject matter from all murals in the city. Governmental regulations of speech that discriminate against certain content historically have not fared well in federal court. Judges are rightfully skeptical when government favors certain types of speech over others.

Mandan’s ordinance discriminates against commercial speech, and mural guidelines adopted by the city prohibit murals that use words as the dominant feature or that have a political message. According to the city planner, the city banned murals on the front of buildings to prevent murals that might be “controversial” or “provoke thought.”

Someone should tell Mandan’s city planner that it’s not up to the government to protect us from controversial ideas or dictate when and where thought should be provoked. The First Amendment is intended to prevent exactly that type of government intrusion into the marketplace of ideas.

Content-based restrictions on speech are subject to the highest standard of judicial review, known as “strict scrutiny.” To survive strict scrutiny, the ordinance must further a compelling government interest and be narrowly tailored to achieve that interest.

The city likely will argue it has a compelling interest in seeking to achieve aesthetic harmony and avoid visual clutter. Given the facts of this case, those interests are hardly compelling (or believable).

Throughout Mandan, large signs (and even other murals, according to plaintiffs’ court filings) appear on the fronts of buildings and along city streets. The "Strip" in particular is littered with signs of all types and sizes. The Lonesome Dove building is no exception. There are other large signs on the front of the building that rival the size of the mural, and the mural itself replaced a painted Coors Light sign.

It’s hard to argue the city has a compelling interest in promoting aesthetic harmony and preventing visual clutter. On the "Strip" and in most commercial areas of Mandan, the dominant aesthetic is visual clutter.

Even if a court found the sign ordinance furthers a compelling government interest, it’s not narrowly tailored to achieve that interest. The ordinance applies in all parts of town, not just where it might arguably be needed. Concerns about aesthetics and visual clutter are generally more acute near a residential area than in a commercial and industrial area like the "Strip." A city-wide mural ordinance is overly broad, even if there was a compelling government interest at stake.

Mandan’s mural ordinance violates the First Amendment by discriminating against certain types of speech with no compelling reason to do so. The owners of the Lonesome Dove should have their First Amendment rights vindicated, and Mandan’s mural ordinance should be struck down as unconstitutional.

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Tory Jackson is an attorney and writer. His legal practice involves real estate and business matters, with a particular focus on historic rehabilitation projects. He holds degrees from Bismarck State College, the University of Virginia and Harvard Law School. He lives in Bismarck, where he was born and raised.