It’s only a mural.
But in a North Dakota town that bills itself as the spot where “the West begins,” the artwork depicting a Wild West scene on the side of a local cowboy bar is creating quite a stir.
The proprietors of the Lonesome Dove saloon in Mandan say the mural, painted on the pub’s facade last fall, promotes their city and business and is simply good advertising.
But officials in the town of 22,000 residents some 200 miles west of Fargo have taken exception, arguing that it violates a city ordinance and must be covered up. To prove the point, a city commission voted 4-1 in March to order the mural removed.
“The more they talked, the madder I got,” said Brian Berube, who owns the bar with Augie Kersten. “I think 95% of the people, they push them hard and they walk away.
“But they pushed the wrong guy.”
To settle the dispute, Berube and Kersten filed a lawsuit last month in federal court, challenging the mural ordinance on First Amendment grounds.
Last week, the bar owners won an early round in the legal spat when a federal judge granted a temporary restraining order barring the city from enforcing its ordinance. U.S. District Judge Daniel Hovland wrote that the saloon owners “have demonstrated they are likely to succeed on the merits of their claims.”
The judge ordered the saloon owners and the city to meet in a settlement conference in July.
The dispute began last autumn, after the saloon owners paid an artist $2,600 for the mural — a Western scene with mountains, a sunset and a cowboy lassoing several letters in the bar’s name.
Not long after it went up, a city inspector wrote out a citation for the artwork, saying that the owners put it up without acquiring a permit.
Berube said the owners weren’t aware they needed a permit. When they tried to comply, however, the Mandan Architectural Review Commission denied their application.
Mandan’s city codes prohibit murals on the front of buildings, and murals can’t be used to advertise. Since the bar’s name was part of the mural, the city said, that made it an advertisement.
City officials said this week that they’re not anti-mural. They just want murals to fit in with the general aesthetics of the area.
“We love our heritage. We want to promote public art,” said City Administrator Jim Neubauer. “We’re not trying to discourage public art. People are very proud, and they want to do what they want to their buildings.”
A national public-interest law firm, the Institute for Justice, caught wind of the dispute after seeing news stories about the spat. Based in the Washington, D.C., area, the firm takes on legal cases with the goal of limiting “the size and scope of government power.”
Erica Smith, the attorney handling the case, said that a recent U.S. Supreme Court decision makes clear that government can’t treat advertising as second-class speech. The First Amendment, which guarantees free speech, applies to advertisements as much as to any other speech, she said.
“The First Amendment doesn’t let the city decide what speech and murals are OK,” she said. “The city’s supposed to treat all speech the same, no matter what it says.”
Mandan also has said the reason it doesn’t allow murals on the front of buildings is to ensure that controversial expressions are less visible, Smith added.
“That’s a big First Amendment no-no,” Smith said. “We see this again and again. Based on my experience, most of the sign codes in the United States are unconstitutional.”
In the meantime, the city of Mandan has placed a moratorium on new murals until the Lonesome Dove dispute is settled. Neubauer said the city is drafting new guidelines after consulting with a number of cities, including the state capital, Bismarck, just across the river.
Berube said he continues to be puzzled by the city’s rules.
“Why would I put up something and not want to advertise my business?” he said. “That’s asinine.”
“We’re hoping to set that precedent for anyone else who wants to put up a mural. We’re hoping it helps everybody and that they restructure the verbiage of their ordinances.”