A mural depicting an Alice-in-Wonderland white rabbit alongside a caterpillar enjoying a toke on a hookah might not seem like subject matter for the Colorado Court of Appeals.
But then neither does an unconstitutional rule seem a proper feature of a city’s code.
Last week Mike Mahaney, the owner of the Headed West smoke shop in Englewood, prevailed in a two- year battle over a pair of murals on his shop’s exterior walls after the appellate court ruled in his favor.
We congratulate Mahaney and question Englewood’s clumsy attempt to dictate expression through a so-called “special review” policy it adopted to regulate murals.
In May 2007, Englewood’s city council objected to the artwork Mahaney had painted on walls he said were chronic targets of less-skilled graffiti taggers.
Some residents said the murals on the South Broadway shop encouraged drug use and some city council members agreed. Besides the Wonderland mural, Mahaney’s shop displayed paintings of Bob Marley, Jimi Hendrix, Jim Morrison, Jerry Garcia and Janis Joplin.
He didn’t apply for a permit the city requires of murals, assuming his murals qualified as works of art, which don’t require permits.
A municipal court agreed with Englewood that Mahaney’s murals violated city code and did not enjoy the “works of art” exemption. Mahaney and his attorneys from the American Civil Liberties Union appealed.
The appellate court found Englewood’s rules for signs were so problematic the question about the “works of art” exemption wasn’t even an issue. Instead, the three-judge panel found that Englewood’s sign ordinance violates the Constitution through its “special review” policy for murals used as signs.
The city erred because the permitting process for murals allows for an essentially indefinite review and because it leaves the approval open to an arbitrary decision-making process on the part of the city manager.
“Because Englewood’s sign code subjects wall murals to special review and approval by its city manager prior to being displayed, it subjects constitutionally protected speech to governmental regulation prior to the speech occurring and imposes a prior restraint on all wall murals, including Mahaney’s,” the appellate court found.
No doubt, Englewood ought to consider revising its code.
Perhaps some will find it a shame that protecting free speech sometimes involves accepting speech not everyone appreciates. But then again, contrary ideas are good for the public debate and, lest we forget, they represent a cornerstone of our democracy.
