Salina Sign Ordinance 10th Circuit Appeal: Mural vs. Commercial Speech

• The owner of Cozy Inn in Salina, Kansas, is challenging the city's sign ordinance after a cheeseburger-themed mural was deemed an illegal sign.
• The city issued a cease-and-desist order, halting the mural's completion, prompting the restaurant owner to sue on First Amendment grounds.
• A district court judge initially sided with the restaurant, allowing the mural to be completed, leading to Salina's appeal to the 10th Circuit.
• The 10th Circuit is now considering whether the mural constitutes regulatable commercial speech or protected artistic expression.
• Amicus briefs, including one from the Goldwater Institute, highlight the potential for arbitrary enforcement under the current Salina sign regulation.

The central question before the appellate panel is whether the city’s regulation of the cheeseburger-themed artwork constitutes a permissible restriction on commercial speech or an unconstitutional prior restraint on artistic expression.

The 10th Circuit Court of Appeals recently heard arguments in a case challenging Salina, Kansas's sign ordinance, which has drawn national attention to the distinction between commercial advertising and artistic expression. The dispute originated when Stephen Howard, owner of the century-old Cozy Inn burger establishment, commissioned local artist Colin Benson to paint a mural on the side of his building. The artwork featured large, cheeseburger-shaped UFOs, accompanied by text playfully referencing the aroma of onions and inviting patrons inside.

City officials in Salina deemed the mural a violation of local sign regulations due to its imagery and lettering. Consequently, they issued a cease-and-desist order, preventing the completion of the artwork. In response, Howard initiated a lawsuit on February 19, 2024, asserting that the city's actions infringed upon his First Amendment rights. U.S. District Judge Toby Crouse, a Trump appointee, subsequently denied the city's motion for summary judgment on November 19, 2025, a ruling that allowed the mural to be finished. The city of Salina then appealed this decision, seeking to uphold its regulations.

During the appellate hearing, the core of the debate revolved around whether the artwork should be classified as a regulatable sign or a protected mural. U.S. Circuit Judge Scott Matheson, an Obama appointee, encapsulated this dilemma by directly asking, “Is it a sign or is it a mural?” Representing Salina, attorney Todd Messenger argued that the city's sign regulations are narrowly tailored to protect local aesthetic values and promote public safety. He contended that the government has a legitimate interest in preventing such a mural if it functions as an oversized sign.

Conversely, Samuel MacRoberts, counsel for Howard and the Cozy Inn, associated with the Kansas Justice Institute, asserted that the artwork's classification was irrelevant. He argued that allowing the government to regulate the mural, regardless of its category, granted the city excessive power. MacRoberts characterized the city's action as an unconstitutional prior restraint, granting authorities unbridled discretion. He illustrated this point in a reply brief, suggesting that under Salina's rules, Andy Warhol's iconic soup cans could only be displayed on a building if the owner did not sell Campbell's soup, or a taco shop could only feature a dove if it did not sell 'dove tacos' or doves in general.

The legal challenge to Salina's sign ordinance has garnered support from external organizations. The Goldwater Institute and the Manhattan Institute submitted an amicus brief, including artistic mock-ups to highlight the perceived arbitrary nature of the city's regulations. These mock-ups presented a scenario where pizza-shaped UFOs might comply with zoning rules, in contrast to the challenged cheeseburger painting, thereby demonstrating the fine and potentially illogical line drawn between advertising and art by the city's rulemakers. This intervention underscores the broader implications of the case for First Amendment commercial speech rights concerning outdoor advertising and murals.

The appellate panel, comprising Judge Matheson, U.S. Circuit Judge Gregory Phillips (also an Obama appointee), and U.S. District Judge David Urias (a Biden appointee visiting from the District of New Mexico), did not indicate when a decision would be rendered. The case, which pits a local business owner's right to expression against a municipality's desire to regulate its visual landscape, is a significant test of the permissible scope of government control over public messaging.

The 10th Circuit's ruling in this Salina sign ordinance appeal will establish crucial precedent for attorneys advising businesses on First Amendment commercial speech rights related to outdoor advertising. It will also provide vital guidance for municipal lawyers tasked with drafting or enforcing local sign ordinances. The central question before the appellate panel is whether the city’s regulation of the cheeseburger-themed artwork constitutes a permissible restriction on commercial speech or an unconstitutional prior restraint on artistic expression.

This decision will clarify the permissible boundaries of government regulation over both aesthetic and commercial messages, particularly the often-blurred distinction between art and advertising. The outcome will have lasting implications for how cities across the Tenth Circuit can regulate external building displays, impacting everything from business signage to public art, and defining the extent to which local governments can control visual content based on its perceived commercial intent.

This case will provide crucial precedent for attorneys advising businesses on First Amendment commercial speech rights concerning outdoor advertising and murals, and for municipal lawyers drafting or enforcing local sign ordinances. The 10th Circuit's decision will clarify the permissible scope of government regulation over aesthetic and commercial messages, particularly the distinction between art and advertising.

Source: Original reporting via Courthouse News Service.