AILSA CHANG, HOST:
There's a mural in Salina, Kansas, on the side of a restaurant. The restaurant sells hamburgers, and the mural depicts hamburgers - big ones - ones that look kind of like flying saucers, which has led to a legal case. At issue in that case is this question - is the mural a work of art or an advertisement? Matthew Algeo of Kansas Public Radio reports.
MATTHEW ALGEO, BYLINE: The Cozy Inn is a popular hamburger stand in downtown Salina, once named the best in Kansas by USA Today.
UNIDENTIFIED WAITRESS: Ketchup, mustard on them?
UNIDENTIFIED CUSTOMER: All.
UNIDENTIFIED WAITRESS: OK.
ALGEO: The owner of The Cozy is Steve Howard. Back in 2023, he hired a local artist to paint the mural, which depicts UFO-like hamburgers squirting ketchup and mustard. Howard says he was inspired by several other murals that had recently gone up downtown.
STEVE HOWARD: I was inspired. I thought I was contributing to Salina downtown.
ALGEO: But, Howard says, it all went sideways when city officials saw the mural going up and told him to stop. Since it depicted hamburgers, they said, the mural was subject to the city code, which defines a sign as a display, quote, "used to announce, direct attention to or advertise." And they said the mural was larger than the city code allowed. City officials declined to comment for this story. But at a city commission meeting two years ago, Salina's community and development services director, Lauren Driscoll, explained the city's rationale using a coffee house as an example.
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LAUREN DRISCOLL: If the coffee house has a dove with an olive branch and it says the word peace on the side of it, that's not a sign because even though the word peace is there, you're not selling peace inside. Where if we had a steaming cup of coffee and a coffee pot on the side, those are things that draw you into the use of that building.
ALGEO: Steve Howard sued the city. He's not seeking monetary damages. He just wants permission to finish the mural. Last fall, a federal judge ruled in The Cozy's favor and said the city must allow the mural, but the city has appealed that ruling. Sam MacRoberts represents The Cozy. He's working the case pro bono. MacRoberts says the mural is a work of art - that it's whimsical, reflects Steve Howard's personality and is protected speech.
SAM MACROBERTS: The way the law works is if a code is on paper but it still violates the Constitution, then that's an issue. It's a constitutional issue. And so in our view, the sign code violates the First Amendment.
ALGEO: The problem, MacRoberts says, is that the city's ruling is based on the sign's content. If it depicted flying pizzas instead of hamburgers, he argues, the city would be OK with it. Generally, courts have allowed municipalities to regulate the size and placement of signs, but not the content. David Hickey is with the International Sign Association, a trade group for the sign industry.
DAVID HICKEY: The main issue is when a city tries to distinguish a sign from a mural or art, then they have to look at the content of the message. And that's trouble.
ALGEO: So far, at least, public opinion in Salina seems to be in The Cozy's favor. Jon Blanchard is a landscape architect in Salina. He's also a former mayor of the city, and he's been outspoken in his support of The Cozy. He says the city has spent more than $700,000 on legal fees fighting the suit.
JON BLANCHARD: It's one of those issues. It's about at least a 90-10 issue. Ninety percent of the people think it's really not worth the money.
ALGEO: The issue is now before the U.S. 10th Circuit Court of Appeals. If that court's decision is appealed, the next stop would be the U.S. Supreme Court. And if the high court rules against the city, Salina, as well as thousands of other municipalities, will need to update their sign codes.
For NPR News, I'm Matthew Algeo in Salina, Kansas.
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