TheAgitator.com
Federal Judge: Mural Protesting Government Policy Isn’t Protected Political Speech
Wednesday, March 31st, 2010
A federal judge has upheld St. Louis officials’ demands that eminent domain opponent Jim Roos remove the mural pictured here, even though it was put up on on a building Roos owns.
In 2007, the city ordered Roos to take the mural down, saying it violated city sign regulations. City code prohibits any sign larger than 30 square feet in that zoning district; Roos’ mural is more than 360 square feet.
Roos sued to preserve his mural, arguing that it was not a sign, but a piece of art offering a protected political statement.
On Monday, U.S. District Court Henry Edward Autrey rejected that argument, saying the mural — which features the addresses of two affiliated websites –is a “classic example” of the definition of a sign.
“The painting is outside and is used to advertise, identify, direct and attract attention to what petitioners believe is eminent domain abuse. It advertises online addresses for more information,” Autrey wrote. “It attracts attention to the perceived eminent domain abuse.”
Autrey also ruled that the city’s sign ordinance is constitutional because it is “content neutral” — restrictions on signs are based on size and place, not subject.
The prohibition of Roos’ mural, the judge wrote, “relates not to the content of petitioners’ message but, rather, to the method by which they wish to convey it.”
Autrey found that the city’s desire to maintain aesthetic appeal and not disrupt traffic was sufficient enough to allow for restrictions on the placement of signs.
I would leave it up and let THEM try to cover it up.
At some point you do have to allow for content neutral speech restrictions such as permits for using public squares, etc. of course we should be very suspicious that the city enforces this particular rule consistently and that they were not targetting this particular message.
I don’t really understand the sign distinction since signs should be protected by free speech just the same as any other form of expression.
I wonder if political signs face the same restrictions.
political ads*
I hate to say it, and I base this only on the summary included in the post, but I think the court got this one right. It sounds like a facially content-neutral regulation, and restrictions on the size of outdoor signage in certain areas seem reasonably tailored to a legitimate governmental interest.
Political speech is the type of speech you most want to protect.
The matter should have been shut when it came to light that Roos owned the building.
How about this for a content-neutral regulation? “Everything is banned”. Content-neutral makes it okay. Selective enforcement makes it useful.
AFAIK, the judge was technically correct in his ruling, but that doesn’t make him any less of a tool or douchebag.
I know it tugs at your heartstrings but that is a correct application of longstanding first amendment jurisprudence.
If he took the websites advertisements off of the sign, he would have a much better case. It takes it out of the advertisement zone.
This is happening in Missoui? Seriously? I had no idea that there were limits on this sort of thing there, there are signs and billboards plastered all across the state. Something smells fishy.
#11 And then the point would be….You really think Intertube users can be arsed to do their own research? Agitator readers excluded by definition, of course.
He should put up that same mural twelve times with each being exactly 30 square feet.
#12 Matt
That’s what Zargon meant about ‘selective enforcement’. It’s the old “Let’s have the law / regulation / code on the books, but not really do anything about it. Then when something bugs us, or is aimed at us, we can use the old law to ‘handle’ it.”
“On Monday, U.S. District Court Henry Edward Autrey rejected that argument, saying the mural — which features the addresses of two affiliated websites –is a “classic example” of the definition of a sign.
“The painting is outside and is used to advertise, identify, direct and attract attention to what petitioners believe is eminent domain abuse. It advertises online addresses for more information,” Autrey wrote. “It attracts attention to the perceived eminent domain abuse.”
Autrey also ruled that the city’s sign ordinance is constitutional because it is “content neutral” — restrictions on signs are based on size and place, not subject.”
There you go. Where is the issue, again? The fact that the sign is on a building this guy owns is totally irrelevant. It doesn’t matter if it’s advertising Domain Abuse, Shrimp Sandwiches, or the CATO Institute. It’s a sign, and signs greater than 30 square feet are not allowed there.
As to you all that think that this is somehow ‘selective’… There is no indication of that. Now, if it WERE selective, he’d have a legitimate beef. Yes, there are signs in Missouri larger than 30 square feet. But, astonishingly enough… All of Missouri is NOT zoned the same.
Government shouldn’t be able to control what you put on your own property, unless it poses a clear and predictable danger to others.
Running your own nuclear reactor should be a no-no. Putting up whatever sign you want, though, should be fine.
It’s not a sign, it’s the side of building. They might as well make them illegal too. I don’t know of too many signs that operate as a load bearing structure.
I drive by this all the time and, technically legal or not, will be sad to see it go. The highway is littered with billboards and this is the only ‘sign’ not hocking rib sandwiches or American light lager in a manner reminiscent of Idiocracy.
I’m not sure I really buy the fundamental theory that speech can be suppressed so long as said suppression is “content neutral”. The Constitution makes no mention of ensuring content neutrality, but it seems to pretty clearly say that people should be able to speak however they choose.
Obviously there are about a million zoning laws that prove my understanding unpopular at the least, or maybe flat-out wrong. But really, I’m wondering — how is freedom of speech preserved by a law that suppresses all speech equally?
Is it just me or does that sign actually say “Don’t End Eminent Domain Abuse”?
#21 Holy Zarquon! You’re right! The guy should have written Eminent Domain Abuse and *then* run the line through it. Well, I guess he’ll have to redo it anyway….
If the restriction is that signs can’t be larger than 30 square feet and his is 360 square feet would it not be possible to break the sign up into 12 signs of 30 square feet each that just happen to form a larger sign when viewed from a distance?
I can’t see what the deal is, he’s clearly saying don’t end eminent domain abuse.
19 – The first Amendment says that *Congress* shall make no law restricting freedom of speech. They meant the federal congress. Under pieces of the 14th Amendment the right of free speech is said to apply to all persons against all forms of government, state and federal and local etc. But some argue that the calculus is different when it comes to state v. federal government entities.
Usually courts will caluclate your free speech right against the need of the gov to regulate the speech – a balancing test. This is what the minority argued in the Citizens United case. Free Speech purists find this analysis to be total bunk since it says “shall make NO law” not “shall only make reasonable laws.” However, this purist view sort of only applies to the federal congress since it’s based on the epxress language of the first amendment, and not the more nebulous right to free speech incorporated through the 14th.
Thats all a long way to say that states have been allowed to come up with laws that suppress or control speech in ways that are reasonably necessary or important and are content neutral. This includes regulations for signs, free speech zones, permits for using town squares or public meeting venues etc. If the states can argue these rules are important to a state need – such as in this case not having their state cluttered with massive signs everywhere or their zoning schemes rendered meanignless by anything someone might argue is speech – then they have been able to have rules like this.
The notion that the municipal government went after this guy because his sign was too big is so laughably absurd as to hardly bear consideration. It’s like saying that the Republicans and Democrats are honest in their love/hate of the filibuster every single time power changes hands. Yeah, could be, but is it likely?
He should just paint a grid pattern of 5×5 open squares over it to make it a collection of several individual 25 square foot or less signs and thus in compliance with the law. I mean he shouldn’t have to, but he should just to piss them off.
@Nick T: Cool, thanks for the information. Obviously the fact that there are so many laws like this means there is an interpretation allowing that sort of legislation.
And, even more obviously, content neutrality in the suppression of speech is vastly preferable to content-sensitive restrictions.
I’ll 3rd or 4th the idea of putting up / painting a number of 30sqf signs, all saying the same thing – all across the side of that building. There’s always loopholes. “They” can use ‘em so can “we.”
It is none of the damned gummint’s business–local, state or fed.
The bastards rule every damned thing in our lives, and they keep trying to rule more.
His property–he gets to rule. How hard is that?
Buncha sheeples in this country anymore.
@Rhyader –
Just to add one additional point to Nick T’s overview, the First Amendment analyais that permits content-neutral “time, place and manner” restrictions also requires that the government leave open adequate alternative channels of communication. Thus, a town can prohibit protestors from congregating in Main Street every work day at 5 p.m., but will still be required to show that it makes parade permits available or allows such protests in the city parks. So total suppression is generally not permitted, although a lot of this is in the eye of the beholder.
“the First Amendment analyais that permits content-neutral “time, place and manner” restrictions also requires that the government leave open adequate alternative channels of communication. ”
Plus they gotta be narrowly tailored to further a significant governmental interest. There’s no document that says “we the people, in order to form a prettier union…”
He should take that picture of the side of the building and create a sign out of it. One that is the exact dimensions of the code, and paste it to the wall of the building.
It’s kind of an interesting question from a libertarian perspective. On the one hand, you do have the right to free speech, and it’s your property. On the other hand, posting gaudy shit on your property (not saying it is in this instance) can end up lowering property values. But then again you can extend that argument when selling a home to a minority.
@Nick T and Rhayader
Sorry, but that’s a very incorrect retelling of First Amendment law. It’s important to get the analysis right in this situation.
(1) The Court likely ruled this a “time, place or manner” regulation. That is, as the term implies, the regulation is content neutral and regulates the time place or manner of regulation, not the content of it. See Linmark v. Willingboro (1977).
(2) As far as I’ve ever seen, there is no distinction between actions by the states and actions by Congress in regulation of speech. All federal case law regarding Congressional regulations of speech have been incorporated through the 14th Amendment. There are likely exceptions in federal-specific regulations, like those pertaining to the military. See Gitlow v. New York (1925).
(3) The rational basis test that I believe you’re attempting to refer to is much more complicated than you implied and is not likely the basis of the court’s decision here (granted, though, I’ve not seen the decision). Commercial speech can be restricted based on a “substantial interest” test that looks at the interest advanced and how narrowly the rule is being tailored to advance the interest.
That said, there is some distaste for the commercial speech distinction, so that’s some hope for an end to that type of restriction. There is still a distinction in the law, though, so it’s only hope.
On St.Louis Square in downtown Montreal, a house owned by a well-respected political singer has a poem painted on its side-wall. She was ordered to remove it but she claimed that it was not a sign but a piece of art. Several decades later she is dead but the poem is still there.
LMAO
Read the last four postings and ask yourself . . .
Why is America going down the tubes?
billysixstring won the internet at #21.
Eminent domain is much like the government…..BOTH SUCK.
Thought experiment – instead of ‘End Eminent Domain Abuse’, the wall had a giant picture of MLK and said ‘Celebrate Black History Month’, but also had a website address for some business or organization – would the ruling have been the same?
FUCK YOU St Louis!!!
@38
The ruling: Yes. The reaction though wouldn’t be limited to websites such as this. There would be a shit-storm of outrage from certain groupings of people and their so called leaders claiming all manner of racism and victimization.
It might hit CNN and MSNBC the judge would be in contention for Olberman’s Worst Person award, all the panel type legal and babble-shows would be running segments devoted to it and even The Obama might get involved.
@38 Sure, the ruling probably would have been the same. Whether the city would have brought it up in the first place if the message were different is a relevant question, too, though.
Dude needs to erase the word “End”, because the way it reads now it means he does NOT want to end emminent domain abuse. Otherwise, I think it’s a fine sign and gubmint can get the hell offa his lawn.
#35
I’m really not sure what you are talking about. In response to what you wrote:
1) I know. that’s what i said.
2) I agree. What i said was that “some argue” that there is a difference in how free speech applies to the different states. These are their arguments not their analysis of what the court has said. However, I read the Citizens United case to open up a distinction potentially, but we shall have to see.
3) I didn’t mention the rational basis test, becuase it doens’t apply to free speech. All I said was that there is a balancing test (which would include all the tests from rational basis up to strict scrutiny), and that is exactly what the government applies when it uses time, place, manner restrictions. It is relying on the notion that the government interest in regulating those things rises to the level of balancing out the corresponding limits on speech.
So I’m just not sure what I said – albeit a simplified accounting – is “very incorrect.”
Sorry that should read: “how free speech applies to the different *levels of government*”