Cozy Inn v. City of Salina, Kansas

The government cannot single out murals, artwork, or other speech for special burdens based on what they depict or communicate. As is the case in Cozy Inn v. City of Salina, a First Amendment case addressing whether a city may regulate a mural as a “sign” based on its content.

A proud part of the city’s culture and charm, murals are prolific in downtown Salina, Kansas, and the city is known for hosting mural festivals and inviting mural artists from across the country to add to the vibrant public art scene. Part of the city for a century, The Cozy Inn, a historic burger restaurant in Salina, began painting a mural depicting burger-like UFOs blasting the building with ketchup and mustard, along with the phrase “Don’t Fear the Smell! The Fun is Inside!” The City of Salina ordered the restaurant to stop painting the mural after concluding that it was not merely artistic expression, but a regulated sign because it referenced the type of food the restaurant sells and directed attention to the business.

City officials reasoned that because the imagery and message related to hamburgers, the mural functioned as signage and was therefore subject to the city’s sign code. That classification subjected the mural to permitting requirements and restrictions that would not apply to other murals deemed purely decorative or artistic. The dispute thus centers on whether the government may examine the content of expression to decide whether it qualifies as protected speech or regulated signage.

The U.S. District Court for the District of Kansas sided with The Cozy Inn on its First Amendment and prior restraint claims and held that Salina’s distinction between murals and signs was unconstitutional as applied because it depended on the message conveyed by the display. It also concluded that the city’s actions amounted to an unconstitutional prior restraint on speech. In its analysis, the court noted that the case falls between two Supreme Court precedents—Reed v. Town of Gilbert and City of Austin v. Reagan National Advertising—which reached different conclusions regarding the government’s ability to regulate signs.

Salina has appealed to the U.S. Court of Appeals for the Tenth Circuit, seeking to reverse the district court’s ruling and defend its authority to regulate murals it considers to be signs. The case has broader national implications because municipalities across the country regulate signage, murals, and public art, often drawing distinctions based on a display’s message or perceived commercial nature. The Salina Code gives government officials broad and unfettered discretion to interpret a mural and regulate messages and content it finds disagreeable.

“The Salina Municipal Code enables government bureaucrats to control which artistic expressions require permits based on subjective and arbitrary content-based analysis. This is an affront to our First Amendment right to free expression,” said Brendan Philbin, Senior Counsel at the Liberty Justice Center.

The Liberty Justice Center has filed an amicus brief supporting The Cozy Inn, arguing that the First Amendment prohibits the government from reclassifying protected artistic expression as regulated signage based on its content and the subjective interpretations of government bureaucrats.