Recently, a call came into this office asking if there was any law that would prevent a city government from painting over a mural appearing on a publicly-visible outside wall of a building. The presumption was that the mural was made with the consent of the wall's owner and that the mural's content was not defamatory, obscene, treasonous, or in violation of any other laws.
The issue was whether a local ordinance prohibiting "signs" on buildings without a permit, also prohibited the artist's mural.
Although little law has been found on this issue, one case did discuss it, though it appears not to have constituted a final judgment. Therefore, if the issue arose in your community, this case may only lend some support to an artist's argument in persuading a town or city government to reconsider its position. Be aware that a local court may, or may not, follow the decision from a federal court in Illinois that is reprinted below.
LATIN AMERICAN ADVISORY COUNCIL V. WITHERS. No. 74, Civ. 2717 (N.D. Ill. Nov. 22, 1974) (memorandum and order)
This action comes now on Plaintiffs' motion for a preliminary injunction to restrain Defendants from interfering with the painting of a mural and to prohibit them from using a city zoning ordinance to frustrate this artistic endeavor.
FACTS: The plaintiffs include members of a community organization whose design is to promote Hispanic culture and an artist whom they have engaged to paint a mural depicting the struggles of Mexican-American laborers. To accomplish this end, plaintiffs leased the outside of a wall of a restaurant in Blue Island, Illinois and secured a grant from the state cultural agency to finance the project.
The defendants - the Mayor, Building Commissioner, and other officials of Blue Island - have attempted to stop plaintiffs from going forward with their work. The City Council of Blue Island voted to deny permission to plaintiffs to paint the mural. The City Building Inspector originally told Blue Island police to arrest anyone working on the mural and, sent notice to the building's owner that the proposed mural would be a violation of local zoning ordinances.
Defendants' purported authority to prohibit the mural were city ordinances which regulate the size and location of signs. A "sign" is defined by Section 131 of Article III of the Blue Island Zoning Ordinance:
SIGN: A "sign" is a name, identification, description, display, illustration, or device which is affixed to or represented directly or indirectly upon a building, structure, or land in view of the general public, and which directs attention to a product, place, activity, person, institution, or business. It does not include any official traffic sign, emblem, or insignia of a nation, state, county, municipality, school, religious group.
Sections 132 and 134 of the Zoning Ordinance further define a "sign" in subclasses of Advertising Signs and Business Signs. "Advertising Signs" are defined as signs which direct attention to a business, service or activity not necessarily conducted, sold or offered upon the premises where such a sign is located. Further, in the location of the proposed mural, "advertising signs" may not exceed a length of twenty-five feet. Plaintiffs' painting, however, was planned to be substantially longer than twenty-five feet.
THE COURT'S DECISION WAS:
The Blue Island Ordinances regulating signs do not cover this situation. The [p]laintiff's mural does not "[d]irect attention to a product, place, activity, person, or institution;" it seeks to portray an idea and it is exactly this kind of expression which the First Amendment [to the U.S. Constitution] protects from government interference. Defendants here are misapplying an ordinance which regulates only commercial communication and are threatening [p]laintiffs' free exercise of their communicative right.
Under these circumstances, federal injunctive relief is proper to safeguard [p]laintiffs' First Amendment rights from the infringement by [d]efendants' ill-founded application of its zoning ordinances. Although [d]efendants state their intentions of testing the zoning ordinances in a [s]tate suit for a mandatory injunction compelling to remove what has been painted from the wall, there were no [s]tate proceedings of any kind pending at the time the federal complaint was filed. As the [U.S.] Supreme Court reemphasized in Steffel v. Thompson, 94 S.Ct. 1209, 1217 (1974), it is the duty of federal courts to enforce constitutional rights and "[p]rinciples of equity, comity, and federalism have little force in the abscence of a pending state proceeding." Even though [d]efendants assert they have made no further attempts to harras or arrest [p]laintiffs, they admit that "[t]here may have been some initial threats along these lines." A declaratory judgment of the ordinances' inapplicability and an order restraining Blue Island officials from using it to stop the mural will remove the cloud of illegality under which [p]laintiffs have been forced to work.
Abstention, moreover, is inappropriate here. There is no ambiguity; there is no fair way a state court could construe this mural to meet the zoning ordinance's definition of a "Sign." In these circumstances,, a federal court may not shirk its responsibility to protect rights secured by the Constitution. Kusper v. Pontikes, 94 S.Ct. 303 (1974).
The Court in Withers granted plaintiffs' motion for a preliminary injunction, since the Blue Island zoning restrictions on "signs" do not apply to plaintiffs' mural and ordered defendants not to use those ordinances to threaten, harass, or in any way frustrate plaintiffs from painting it.
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