Salina’s crackdown on artwork bad for business, unconstitutional

Litigation director at Kansas Justice Institute

Downtown Salina is vibrant and unique. A quick stroll through its core proves as much. Artwork adorns businesses, facades, and famously, even a century-old mill elevator. The “Mural at the Mill” is impressive in its size and scope, towering over the city for everyone to see. Besides its beauty though, the eye-popping mural exists in part to help bolster business opportunities.

Described by some as an intersection of art and commerce, the hope was the massive 100-plus-foot-tall mural would cause outsiders to spend more time in town, and in turn, spend more of their money.

But even though Salina encourages murals that help foster business opportunities—like the “Mural at the Mill”—it doesn’t permit certain artwork if it has a commercial message, according to news reports.

As one city official put, if a coffee shop paints its entire outside wall with a dove and olive branch, it’s an unregulated mural, not a regulated sign; but if the same coffee shop paints the same wall with a dove and a steaming cup of coffee, it’s a regulated sign, not an unregulated mural. Signs are regulated, murals aren’t, according to City Hall. A mural could take up an entire wall, but a sign can’t.

Salina’s unwritten distinction between murals and signs is antiquated, confusing, and bad for business. It’s common sense—unregulated murals don’t magically become regulated signs just because a coffee shop paints its wall with a coffee mug, instead of a bird. City inspectors shouldn’t be spending their limited time and resources policing speech either.

Besides, downtown businesses should be able to attract customers through their own creative artwork, whether it promotes the business or not. Businesses are allowed to communicate with the public, after all. The city’s policy is bad for small, local business owners that are trying to earn honest livings.

On top of being bad for business, Salina’s outdated distinction between murals and signs is unconstitutional. Paintings and other physical displays of messages—commercial or otherwise—are protected by the First Amendment and the Kansas Constitution Bill of Rights. The Kansas Constitution’s protections may extend even further than its federal counterpart, under recent caselaw.

When city officials treat murals differently based entirely on their message, ideas, content, subject matter, and identity of the murals’ owners—as news reports have suggested—it’s an unconstitutional content-based, speaker-based, restriction on speech. Each and every day a business is prevented from expressing itself through its own artwork is a violation of the First Amendment and the Kansas Constitution.

Business owners know what to say to their customers, and how best to say it to them, not City Hall. Salina’s crackdown on art is not just bad policy, it’s wrong. It should change its code immediately, so it doesn’t restrict free speech.

Sam MacRoberts is litigation director at Kansas Justice Institute, a free, nonprofit, and public-interest litigation firm committed to upholding constitutional freedoms and defending against government overreach and abuse.