Both commercial freedom and creative freedom suffered a devastating blow in Arlington, Virginia, this past week. County officials have forced a local pizza joint to paint over a mural that adorned the outside of the restaurant.
In November of last year, local favorite Goody’s spruced up the exterior of its Clarendon location with a mural depicting pizza alongside various common toppings, such as mushrooms, tomatoes, and olives. The idea was to “get a little more attention from people walking by,” owner Glenda Alverez tells the local news site arlnow.com.
Unfortunately for Alverez and her business, the mural turned out to be against the law. Under Arlington County’s sign code, no mural painted on the outside of a business may depict the products sold inside.
Had the pizzeria’s mural featured car parts, clothing, or something else that the restaurant doesn’t sell, the artwork would likely have escaped the enforcers’ notice. Instead, zoning officials promptly notified the business that it was out of compliance and that its exterior would likely have to be repainted. This past week, the mushrooms and olives gave way to a uniform lime green paint job.
Forcing a business to repaint a mural because of its content is not just petty. According to Robert Frommer, an attorney with the libertarian Institute for Justice, it is unconstitutional. If a code says that “certain subjects or topics…are prohibited,” he explains, that means it’s “preventing you from speaking on certain subjects just because they don’t like the message.” Therefore, he argues, the law violates the First Amendment.
In 2011, Frommer and the Institute of Justice sued Arlington over a similar case of mural censorship. That time, officials told Wag More Dogs, a dog grooming business, that a canine-depicting mural on the exterior wall of its building (which happened to face a dog park) would have to be covered by a tarp until it could be repainted.
Arlington County argued that its regulations existed to protect the county’s aesthetic and to prevent drivers from being distracted by flashy advertisements. The federal courts ultimately sided with the government, and in 2012 the doggie mural was painted over.
The U.S. Supreme Court has subsequently broadened its First Amendment protections, ruling in the 2015 case Reed v. Gilbert that governments cannot place content-based restrictions on signs. Because of that, Frommer thinks the same case would go a different way today.
Sign regulations, he adds, can be incredibly onerous for small businesses trying to attract customers. He thinks cities should restrict themselves to regulating physical aspects of signs that might pose a health or safety risk.
“We’re worried about signs falling over or distracting someone,” says Frommer. “Whether I have dogs or pizza or cats or ponies doesn’t way into that at all.”
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