Is a complaint that the colors of a mural on a private property are too bright valid? Can it prompt a city to impose broad-brush restrictions on murals? Waller, northwest of Houston, Texas, has done just that. Its Mural Ordinance #609 sets into law arbitrary aesthetic and commercial preferences, thus violating free speech – deeply embedded in American identity and enshrined in the First Amendment.
The ordinance has also destroyed the $225,000 contract that brought Brad Smith and his wife Kay Ray-Smith to the city of around 3,000 people last year. Brad, 61, has been painting murals since his teenage years. Kay took up art as a healing process. Their works have adorned walls in Burleson, Waco, Denison, Wynnewood, and other places in Texas and elsewhere. Their firm Tilt Vision was contracted by Finishes Solutions to create 13 murals for its buildings in Waller. They completed three, but the ordinance effectively bans any more so the contract was suspended indefinitely. They have since had no new leads or contracts in Waller.
The artist couple are fighting back with a federal civil rights lawsuit in the U.S. District Court for the Southern District of Texas. They are being represented pro bono by the Pacific Legal Foundation, whose attorneys say the ordinance is unconstitutional and not only violates the First Amendment but also deprives the Smiths and other artists of their livelihood and the opportunity to revitalize communities.
The Smiths say they met Mayor Danny Marburger and some city council members even before they got the contract, reassuring the officials that their murals stayed clear of controversy. “My murals make people smile,” Brad told Houston Public Media. Indeed, they usually cover wholesome, all-American themes – patriots and war heroes, smalltown scenes, cityscapes, country roads, skies and clouds, and so on.
According to the Pacific Legal Foundation, someone apparently complained that the colors of this particular mural were too bright.
Via Pacific Legal Foundation
After that, on February 20, Waller came up with the ordinance, which essentially denies business owners the opportunity to advertise on their own property. New murals must be registered with the city with a $500 fee before starting work. Murals are not allowed on residential buildings, nor on the primary façade of any building. Besides setting other conditions for upkeep of the murals and not causing traffic hazards, the ordinance bans gang symbols, commercial messages, and advertising on murals. City attorney Arthur L. Pertile reportedly defended the ordinance, saying, “It allows for those people who may not care for public art not to have to see it every day.”
But the right to free speech, which includes freedom of artistic expression, applies even to messages, ideas, and contents that are provocative or controversial. In addition to the First Amendment, the Due Process Clause of the 14th Amendment protects freedom of expression from abridgment by any law at any level of government. The Supreme Court has interpreted the First Amendment as applying to books, theatrical works, paintings, posters, comic books, and beyond. The U.S. Court of Appeals for the Second Circuit, too, has held that art works, which could use a broad range of mediums, “communicate an idea or concept to those who view it, and as such are entitled to First Amendment protection.”
Implicit in these interpretations is the idea of content neutrality – expression cannot be curtailed even if the content is deemed offensive by some. True free speech means tolerating products of expression that may be insulting, unsightly, disrespectful, antagonistic, or even of poor quality. Limitations may be imposed only if the material is defamatory, obscene, includes fighting words, involves child pornography, or creates “clear and present danger.”
Therefore, Tilt Vision Studios, LLC, et al v. The City of Waller, Texas, is a critical test of First Amendment freedoms, especially the idea that reaction to a work of art cannot be the grounds for curtailing artistic freedom. Three cases may buttress the Tilt Vision case: Reed v. Town of Gilbert, Arizona; Barilla v. City of Houston; and Morris v. City of New Orleans.
In Reed v. Gilbert, the Supreme Court of the United States ruled on October 21, 2013, that even a temporary sign giving the time and location of a specific event “conveys an idea.” If a public agency regulates it based on content, the restrictions – regardless of their purpose – must be subject to strict scrutiny. The petitioner was Pastor Clyde Reed, of the Good News Community Church, which caters to the homeless. He had received notices of sign code violations after putting up small temporary signs to announce religious services and give directions to the location.
The federal district court and the court of appeals had granted summary judgments in favor of Gilbert. But the Supreme Court reversed the decision, holding that the code was content-based and a specific message had been unfairly singled out: signs for church service had to be smaller than six square feet, but ideological signs could be up to 20 square feet, political signs up to 32 square feet, and homeowners’ association signs up to 80 square feet. The Supreme Court unanimously invalidated Gilbert’s ordinance, reaffirming the content discrimination principle under the First Amendment. Justice Alito, however, added some examples of permissible non-content-based regulations.
In Barilla v. City of Houston, accordionist Tony Barilla sought opportunities for busking on the streets of Houston to earn extra money and fine-tune his performances. A Houston ordinance allowed street performances while outlawing tips in all but a small theater district area. Even there, buskers were required to get permits based on approval from property owners. Barilla sued the city in 2020, but the district court dismissed it for lack of standing, saying he had failed to establish “injury in fact.” This despite the Supreme Court having recognized “chilled speech or self-censorship” as an injury sufficient to confer standing if it relates to a matter of constitutional import. The Fifth Circuit Court of Appeals reversed the district court’s ruling, saying Barilla had presented sufficient evidence that the city was regulating/prohibiting a constitutionally protected activity.
Morris v. City of New Orleans relates to murals. In 2017, New Orleans resident Neal Morris got street artist Cashy-D to paint a mural defamatory of President Donald Trump on the fence of his warehouse. He was soon served with a notice from the department of safety and permits that his mural violated local zoning laws. He was asked to remove it or face legal action that could result in a jail term.
Morris’s lawsuit, taken up by the Louisiana branch of the American Civil Liberties Union (ACLU), points out that requiring permission before self-expression is violative of the right to free speech, protected by the First Amendment. Also that New Orleans selectively enforced permit approval – a Yoko Ono quote at a museum and a mural at a firehouse, for example, were not required to obtain permits. The city said it did not initiate action as “no one complained.”
The Fifth Circuit court was convinced of Morris’s loss of First Amendment freedoms and enjoined the city from enforcing those regulations. Colleen Kane Gielski, an attorney for the ACLU, said, the “ultimate goal” was “to protect not just Neal’s rights, but the rights of any artists and residents that may be similarly targeted in future.”
Compared to the Morris mural, those painted by the Smiths are innocuous. But even if they were provocative, the greatness of American freedom is that they would be allowed and their protection guaranteed by the constitution. It is more than likely that the three precedent-setting cases cited above have paved the way for a favorable judgment for the Smiths. A victory will restore their freedom of speech, their livelihood, and the ability of artist-entrepreneurs to provide revitalization of communities through art.
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