published Sunday, August 24th, 2014

Smith: Chattanooga's sign code needs a revamp

By Erica Smith

Donuts float in a heavenly sky at the corner of Broad and 20th streets in Chattanooga. This mouth-watering image is the new mural on the wall of Barbara Davis' well-known bakery. But the city code says the mural has to go. Sound unfair? It's also unconstitutional.

Barbara Davis has owned Koch Bakery for 31 years and was tired of her building being covered in graffiti. So she hired an artist to paint her wall for $11,000. The result was a dreamy mural featuring several flavors of soaring dunkers. But barely two days after it was unveiled, the city demanded that she paint over it. That's because the city's 59-page sign code only allows murals that do not include advertising. According to the city, the mural is an ad because even though it has no words, it shows some of the delicious goods Barbara sells.

Signs are the lifeblood of small businesses. Not only are they essential to attract customers, but they often add character to a storefront, like Barbara's mural does. It shouldn't matter if a sign displays artwork, supports the local sports team, or simply invites customers inside. Small business owners have the right to express themselves just as much as anyone else. And they shouldn't have to wade through hundreds of regulations before they do so.

These sign codes are not just bad for business, they are often unconstitutional. Signs and murals are protected speech under the First Amendment, and the government is not allowed to favor or disfavor speech based on its content. Yet that is exactly what Chattanooga is doing. The city's sign code allows Barbara's mural to show Cheetos or cheeseburgers (or the Mona Lisa) because she doesn't sell them, but she can't show donuts or anything else a government official deems bakery related. Our Constitution prohibits the city from playing art critic, and it can't tell Barbara what she can and cannot have painted on the side of her shop.

Unfortunately, not all judges enforce the First Amendment. The Institute for Justice has challenged several government restrictions on small businesses' signs, including in St. Louis, Mo., and Arlington, Va. The Eighth Circuit, a federal appellate court covering the Midwest, made the right call and decided that St. Louis could not ban a mural protesting the city's property rights abuses precisely because the city allowed other similar displays. But the Fourth Circuit, a federal appellate Court on the East Coast, disagreed. It found that Arlington could force a dog daycare to paint over its mural showing dogs playing since the city considered it to be advertising, even though the city allowed all other types of murals. In the Fourth Circuit's view, the city could discriminate against certain topics as long as it didn't discriminate against a certain viewpoint.

Thankfully, the U.S. Supreme Court's June 26 decision in McCullen v. Coakley may finally end this conflict in the lower courts. The Court clarified that a law is unconstitutional whenever it requires a government official to look at your speech to determine whether and how it will be regulated. In other words, if a city allows some murals, it must allow all. McCullen is a clear signal to politicians and bureaucrats across the country that judges should not -- indeed, cannot -- tolerate regulations like Chattanooga's sign code.

Chattanooga is now reconsidering whether to force Barbara to paint over her mural and is debating whether to change its sign code. Chattanooga, do the right thing: let the donuts fly and avoid a lawsuit.

Erica Smith is an attorney with the Institute for Justice, an Arlington, Va.-based national nonprofit law firm and advocate for free speech.

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