Key Points

  • The Tenth Circuit affirmed summary judgment for Cozy Inn and its owner on their First Amendment challenges to Salina, Kansas's sign code and permit handling.
  • The court did not decide whether the sign code is content based, holding that it fails even intermediate scrutiny because Salina's evidence failed to show that regulating signs but not murals advances its safety, aesthetic or property-value interests.
  • The court rejected Salina's reliance on common sense, legislative deference and the collective judgment of at least 34 other local governments with similar codes as a substitute for evidence.
  • Salina's indefinite hold on the restaurant's permit application, pending for three years without the owner's consent despite a 10-day decision requirement, was an impermissible prior restraint.

A federal appeals court ruled on Friday that Salina, Kansas, violated the First Amendment by treating a painting of hamburger-shaped flying saucers on a century-old burger restaurant as a regulated sign rather than an unregulated mural. The court held that the city's evidence failed to show that the line it drew between signs and murals served its stated goals.

A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit affirmed summary judgment for the Cozy Inn, a downtown Salina restaurant that has served sliders for more than 100 years, and its owner, Stephen Howard. Judge Matheson wrote for the panel, which also included Judge Phillips and U.S. District Judge David H. Urias of the District of New Mexico, sitting by designation.

The panel also held that Salina imposed a prior restraint, a restriction on speech before it occurs, when it kept Howard's permit application on hold for three years without his consent. On the sign code, the court held that a city defending a speech rule must produce evidence that the rule advances its interests, rather than rely on common sense or the example of other towns.

Salina's code defines a sign as a display that, among other things, is "used to announce, direct attention to, or advertise." Signs need a permit and are limited in size. Murals need no permit and face no limit on size or number. The city has many, the opinion said, including one of children playing Ring Around the Rosie on an abandoned grain elevator.

Howard hired an artist to paint the restaurant's white exterior wall with a display that would "include whimsical hamburger-esque flying saucers piloted by aliens attacking The Cozy [Inn] with blasts of ketchup and mustard" and read "Don't Fear the Smell! The Fun is Inside!!" Work began on Nov. 3, 2023. Three days later, city officials told Howard to pause because the "hamburgers are basically the same thing [Cozy Inn] sells, and therefore, it would be signage," and because the painting was about eight times too large.

At the city's direction, Howard applied for a permit on Nov. 13, 2023. In February 2024, Salina wrote him that it was placing the application "on-hold" during a "comprehensive review of the City's sign regulations." Two weeks later, Cozy Inn sued. The federal district court in Kansas granted the restaurant summary judgment and declaratory relief on its First Amendment claims but denied a permanent injunction.

On appeal, Salina argued that its code was content neutral, which would trigger intermediate scrutiny, a test requiring a speech rule to be narrowly tailored to a significant government interest. Cozy Inn argued that the code was content based and subject to strict scrutiny. Like the district court, the panel did not decide which test applied, because it found that the code failed even the less demanding one.

The court accepted that traffic safety, aesthetics and property values are significant interests. But Salina had argued that narrow tailoring was "satisfied by common sense and legislative deference" and pointed to the "collective legislative judgment" of at least 34 other local governments with essentially the same code. The panel said it had rejected that approach before, because such ordinances "could very well be grounded on the same sort of inadequate common-sense and anecdotal evidence" as the one under challenge.

The court then reviewed the city's evidence. A student law review article Salina submitted, the court said, "negates Salina's position." City planner Dustin Herrs was asked in a deposition whether the city knew of facts showing that painted wall signs harm pedestrian safety more than murals do. He answered, "No."

Salina's expert, the planner Mark White, cited a four-paragraph student article for the proposition that public murals are associated with less crime. The court wrote that he "provided no evidence or explanation for why an artistic display that references products cannot also replace or deter graffiti or why it may be more harmful to Salina's interests than a mural." Asked at his deposition whether any evidence showed "that a burger-esque UFO mural is more dangerous than a pizza-esque UFO mural," White answered, "Again, I can't think of anything that specific."

"Salina's evidence failed to justify the distinction between regulated signs and unregulated murals," Judge Matheson wrote. "Because the means-ends evidence is lacking, the sign code fails intermediate scrutiny."

On the permit, the court said the code's 10-day deadline for granting or refusing an application, unless the applicant agrees to more time, is constitutional on its face. Salina argued that Howard consented to the hold. The panel found that a city official's testimony showed only that Howard was told of it, and that "nothing in the record shows that Salina informed him of an indefinite hold, let alone that he consented to one."

The panel also rejected the city's argument, not raised in the district court, that Howard knew his oversized design would be denied anyway. The city's own letter, the court wrote, "hardly suggests Mr. Howard's application would be automatically denied."

"The application has now been pending for three years," Judge Matheson wrote. Quoting a 2004 Tenth Circuit decision, the court added: "[E]ach day of delay in acting on the application was a day in which [Mr. Howard] was forced to be silent."

Seven groups, including the Institute for Justice and the Pacific Legal Foundation, filed friend-of-the-court briefs supporting Cozy Inn. Salina was represented by Todd G. Messenger of Fairfield and Woods, P.C. Cozy Inn and Howard were represented by Samuel G. MacRoberts of the Kansas Justice Institute, and Brendan J. Philbin of the Liberty Justice Center filed an amicus brief supporting them.

The decision leaves in place the district court's declaratory judgment for Cozy Inn and its denial of an injunction. Cozy Inn's separate claim that the code is unconstitutionally vague, on which the district court denied the restaurant summary judgment, was not part of the appeal.