Mark Silverstein, legal director for the local ACLU branch, believes Englewood will now have to revise portions of its current sign code. But he also hopes the ruling dissuades the city from acting against murals based on content -- something the ACLU believes took place in this instance.
"We were drawn to the case because a mural is expression that's protected by the First Amendment," Silverstein says. "An order from the city that the mural had to be painted over is an infringement on the right of free expression that has to be justified by pretty weighted governmental interest -- and after we took a close look at the sign code, we felt Mr. Mahaney had the right to keep his mural up."
Sileverstein feels the mural was targeted specifically because of its content. "The evidence in our case was that the city was prompted to enforce its sign ordinance against Mr. Mahaney because of the perceived message of the mural. The evidence showed that members of the city council had received calls from residents who complained about it; they believed the mural endorsed or encouraged use of illegal drugs."
The panel didn't base its decision on this contention, and right now, action is pending against another Englewood business, Island Motors, for four murals that don't have potentially controversial content; they consist primarily of generic tropical scenes, Silverstein notes. Englewood agreed to delay prosecution against Island Motors pending the decision about Headed West. Silverstein declines to speculate on the possibility that Englewood moved against the tropical works to make its objections to the hookah mural seem unrelated to its druggy subtext, but he does say he knows of at least one other mural in town that has been allowed to remain in place, apparently because it predated the current code.
In any event, Silverstein emphasizes that "if the code is being enforced based on the disapproval of the message, that's very clearly a violation of the Constitution. Courts have always said government discrimination based on viewpoint is one of the very things the First Amendment was designed to protect."
No matter how you smoke it.