Is this a "sign?" The city of St. Louis thought so. The city's building inspection department issued a citation to the folks who commissioned the painting on a residential duplex, telling them they needed a permit. So they asked the city for one.
Denied. The zoning code does not allow for such signs. It's too big. The building doesn't have street frontage. Signs can only be incidental to the building's use, and the building is a two-family home.
Appeal to the Board of Adjustment. No adjustment: it's not exempt as a "work of art," a "civil symbol," or (get this) a "crest." Those things are not subject to the sign code. Paint a big flag, a mural, (or your family crest?) and you don't need a permit. But this is a sign. And signs need a permit.
Next stop, state court. The sign guys filed a lawsuit for federal civil rights violations (free speech, equal protection), for violations of the Missouri Constitution's parallel provisions, and for an administrative writ under state law. The city removed the case to federal court. The district court granted the city's motion for summary judgment: the city's sign code doesn't violate the First Amendment, and the Board's decision wasn't arbitrary or capricious.
The U.S. Court of Appeals for the Eighth Circuit reversed. In Neighborhood Ent., Inc. v. City of St. Louis, No. 10-1937 (July 12, 2011), the court first held that the sign guys have standing to challenge the sign code's constitutionality, not just the parts of the code the city claimed the sign violated. On the merits, the court held that the code's defintion of "sign" is not content neutral and therefore would be reviewed with strict judicial scrutiny. Not a good "sign" for the city.
Held: the ordinance is not content neutral because "the message conveyed determines whether the speech is subject to restriction," because to determine whether something is a "sign" or a "non-sign," you've got to determine what it says. A similar mural would not be a "sign" if it were a national symbol or "crest" (there's that "crest" thing again; what is that?). Slip op. at 12-13.
The court rejected the city's claim that its interest in traffic safety and aesthetics were compelling. Important, yes. "Compelling?" No. Even if these interests were compelling, however, the ordinance would still fail strict scrutiny because it is not narrowly tailored because there's no explanation how traffic safety and asethetics are served by the content-based exceptions noted above. Slip op. at 15. A similarly sized flag might be as distracting to drivers. And "aesthetics?" Yes, pretty big paintings are nicer than ugly big paintings, but that hardly seems like a workable standard.
The court remanded the case to the district court for a determination whether the ordinance's severability clause allowed the other parts of the ordinance to remain, or whether the whole thing had to go. We've been following this story for a while because of its eminent domain overtones, but even without those threads, this looks like the right result.
More here, including the briefs and the court orders from the Institute for Justice, the lawyers who represent the sign guys, and from the Volokh Conspiracy.
And on that final note, we offer up Ace of Base's The Sign. Click it. You know you want to.
