Institute for Justice Scores Free Speech Wins

Macro shot of Lonesome Dove's Mural /
• May 24, 2019 2:55 pm


The Institute for Justice won two free speech cases for entrepreneurs this week: one against licensing laws, the other against the "mural police."

The two cases are part of IJ's push to "limit the size and scope of government power and to ensure that all Americans have the right to control their own destinies as free and responsible members of society."

In October, the city of Mandan hard ordered Lonesome Dove's owners to remove a mural on its building.

According to a press release from IJ, the mural "shows a sun setting over the mountains, with a ranch and cowboys scattered across the landscape. Artistically rendered across the top of the mural are the words, ‘Lonesome Dove.' The mural brought in new customers and many compliments."

The city felt otherwise. It cited a law saying "no mural may be placed on the front of the building" and "no mural shall convey a commercial message."

On behalf of the owners, IJ filed suit, alleging the law was unconstitutional on First Amendment grounds.

On Wednesday, a district judge granted a temporary restraining order and preliminary injunction in favor of Lonesome Dove, a small bar in Mandan, N.D.

Daniel L. Hovland, Chief United States District Judge of the United States District Court for the District of North Dakota, argued the law was unlikely to pass constitutional muster. He explained that, per longstanding Supreme Court precedent, restrictions on speech must be "content neutral." The law restricted only commercial murals, a form of content restriction.

Accordingly, Judge Hovland determined that "at least portions of Mandan's prohibition on commercial murals are clearly not content neutral."

The decision is significant, as courts have only infrequently ruled that commercial regulations on free speech constitute content discrimination.

"We are pleased that for now, our clients will be able to exercise their First Amendment rights and keep up their mural," IJ attorney Erica Smith said in a press release. "Murals are a form of free speech and the First Amendment doesn’t let the government say what speech is OK and what isn’t."

IJ won another free speech case this week, this one in Savannah, Georgia's third-largest city.

A judge sided with the IJ-represented plaintiffs in Freenor v. Mayor and Aldermen of the City of Savannah. The case was first filed in 2014.

The plaintiffs, a group of tour guides, alleged that Savannah's requirement that paid tour guides take a test and obtain a license violated their constitutional rights. They argued that "the city’s licensing law violated their basic right to talk for a living."

In an effort to avoid the unfavorable ruling handed down Tuesday, city officials repealed the requirement in 2015.

"In this country, we rely on people to decide who they want to listen to," an IJ attorney said. "We do not rely on government to decide who will get to speak."

Founded in 1991, the IJ says it undertakes litigation to "come to the aid of individuals who want to do the simple things every American has the right to do—including own property, start and grow a business, speak freely about commerce or politics, and provide their children with a good education—but can’t because they find the government in their way."