Amicus Brief: Cozy Inn v. Salina

The Cozy Inn is a local and well-loved hamburger spot in Salina, Kansas. The owner wanted to paint a mural on the side of the building that would "include whimsical hamburger-esque flying saucers piloted by aliens attacking The Cozy with blasts of ketchup and mustard." Salina has a lot of murals, so he figured one more would be fine. The city told him, however, that it was a commercial sign rather than a mural. This created a First Amendment problem, so the owner sued and won. The city has appealed to the Tenth Circuit.

The Manhattan Institute has joined the Goldwater Institute on a brief supporting Cozy Inn. The important question in this seemingly little case is when a law is "content-based" under the First Amendment, and it is important because that can often be outcome-determinative. Salina's regulations are based on murals/signs that “announce,” “direct attention to,” or “advertise.”  That's a dangerous law that is based on the motive of the communication. Also, Salina's attempt to distinguish the hamburger mural from “public art” is arbitrary, impracticable, and content-based. Finally, any attempt to save the city's ordinance as regulating "commercial speech" also fails because it still distinguishes murals that merely "direct attention to" a business rather than, say, a church or a museum. After all, all pictorial communication "directs attention to" something. The First Amendment requires more than such arbitrary laws. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

Photo: larrybraunphotography.com/Moment via Getty Images