I posted on the Ed Stross mural case last night, but hadn’t yet located the decision. Now that I have reviewed it, here is my full analysis.
In 2005, artist Ed Stross painted a mural on the outside of his studio that has been described as “a take on Michelangelo’s ‘Creation of Man.’ It depicted Eve with a bare breast and has ‘love’ written on it.”
The bare breasts are part of a rendition of the biblical “Eve,” as depicted in the “Creation of Man” work at the Sistine Chapel by artist Michelangelo. He called his the “Creation of the spirit of Roseville.” Each letter of “love” is depicted on open pages clasped by angels. (source)
Roseville, Michigan’s sign ordinance prohibits display of genitalia and lettering.
In February of 2005, Stross was sentenced to 2 years probation and 30 days in Jail by Judge Marco Santia for his transgressions against society. (source) Santia refused to allow Stross to raise First Amendment defenses and refused to allow the sentence to be suspended pending appeal. (Judge Santia, come on down and accept your ass-hat award).
Fortunately, the Michigan Court of Appeals reversed, stating that such a move would violate Stross’ First Amendment rights.
Interestingly enough, the case was not about the bare breasts, but on the lettering.
The Court of Appeals noted, intelligently, that breasts are not “genitalia.”
We note that the mural did not contain genitalia under the plain meaning of that term. Random House Webster’s College Dictionary (2001) defines “genitalia” as “the organs of reproduction, esp. the external organs.” Because breasts are not reproductive organs, they are not properly considered genitalia. Stross v. Roseville at 4 note 5.
Commercial or Non-Commercial Speech?
The first question to answer in these kinds of cases is what level of protection should the expression enjoy? Commercial speech receives far less protection than pure non-commercial expression.
The dissenting justice wrote that the mural was commercial speech:
Although the mural may not be an advertisement in the typical sense of that term, it is located on the building in which defendant operates his art studio, bears his signature as the artist, and serves to inform the public of his talent and artistic abilities. The mural itself is an example of the product that defendant, an artist for hire, offers for sale. Moreover, the obvious economic motivation for the mural is to draw attention to defendant’s talent in hope of attracting persons in need of an artist’s service. In addition, signage not located on the wall works in association with the mural to promote defendant’s art studio and the sale of his work. (source)
This is a bit chilling — so I am grateful that this was in the dissent. Otherwise, it would likely mean that all signed art could be considered to be commercial speech.
The majority, on the other hand, declined to determine whether the mural was commercial or non commercial speech. The majority held that resolution of that question was unnecessary since the ordinance violated even commercial speech rights under Central Hudson Gas & Electric Corp. v. Pub. Service Comm’n. of New York, 447 US 557, 566 (1980). Accordingly, if the ordinance violates commercial speech rights, it certainly violates non-commercial speech rights.
Why does the ordinance run afoul of commercial speech rights?
Under Central Hudson , courts must ask:
(1) Does the speech concern a lawful activity and is it not misleading, so that it falls within the protections of the First Amendment, and (2) is the government’s restriction justified by a substantial governmental interest? If those two questions are answered “yes,” then we must go on to ask: (3) Does the regulation directly advance the asserted governmental interest, and (4) is the regulation more extensive than necessary to serve the governmental interest.
Under this test, the Court of Appeals looked at the genitalia prohibition and the lettering prohibition, splitting the difference. The Court found that it was reasonable for the City to ban genitalia on signs, but not lettering.
In a heartening statement, the Court said “There appears to be no dispute that the mural is protected under the First Amendment.” No further discussion.
It then went on to examine the governmental interest in the regulation. The regulation’s stated purpose was to
“protect the health, safety and welfare of the citizens of the City of Roseville, including but not limited to defining and regulating signs in order to promote aesthetics, to avoid danger from sign collapse and to regulate sign materials, avoid traffic hazards from sign locations and size, avoid visual blight and provide for the reasonable and orderly use of signs.”
Finding these interests to be legitimate, the Court examined whether the ordinance advanced those legitimate interests.
Plaintiff argues, and the circuit court determined, that the mural is located at a well-traveled intersection, and that the restrictions are clearly related to avoiding traffic hazards. The mural is 1,100 square feet and covers most of the 50-foot side of the building housing defendant’s art studio. Considering the overwhelming size of the mural, the inclusion of genitalia in the mural could very well distract motorists and cause aesthetic concerns. The inclusion of lettering could also distract motorists, depending on the size and quantity of the lettering. For example, a mural consisting principally of words could cause a traffic safety hazard if drivers shifted their focus to reading the mural. Thus, it appears that the restrictions directly advance the asserted governmental interests.
Accordingly, the Court agreed that 10 foot tall penises might cause traffic hazards and negatively impact the City’s aesthetics. Accordingly, there was a “reasonable fit” between the genitalia provision and the stated legislative interest. However, as noted above, this did not impact Mr. Stross’ case, because the Michigan Court of Appeals understands anatomy to a greater extent than Kevin Martin or Deborah Taylor-Tate (they think that the buttocks are a sexual organ).
The Court gave a bit more thought to the restriction on lettering.
While prohibiting lettering to a certain extent may be a reasonable means of achieving the goals of traffic safety and aesthetics, prohibiting lettering completely appears to be an excessive restriction compared to the interests sought to be advanced. Indeed, it does not appear that the word “Love” on the mural would distract motorists or detract from the aesthetic value of the neighborhood. Thus, we conclude that the complete ban of all lettering is too restrictive to promote the goals of traffic safety and aesthetics and is not narrowly tailored to achieve these objectives. Accordingly, the restriction prohibiting lettering is an unconstitutional regulation of speech, infringing on defendant’s First Amendment protections.
Because the jury was permitted to convict defendant based on the unconstitutional provision prohibiting lettering, his conviction must be reversed. “[W]here a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground.” Griffin v United States, 502 US 46, 53; 112 S Ct 466; 116 L Ed 2d 371 (1991). Thus, because the jury could have convicted defendant based on either the unconstitutional lettering provision or the provision prohibiting genitalia, we reverse his conviction.
The Chicago Tribune reports that the town may appeal to the Michigan Supreme Court. (source) The only justification for such an appeal would seem to be a City governed by those who are completely and irrationally obsessed with “being right” as opposed to those who uphold their oath of office. See, e.g., Daytona Beach.
this article is very misleading. i live in roseville. mr stross’ work is on one of the bussiest corners in the area, making his advertisement (and yes, it is an advertisement) very distracting.
now i say it is an advertisement for this reason: mr stross is an artist, he has utilized his building to display his art, thus advertising his skills.
what this aricle also fails to mention is that in order to paint on his building, mr stross agreed with the city not paint words that exceed what a sign ordinance would allow for lettering. if you were to see the lettering, art or not, it is a clear violation of the city’s sign ordinance.
….and what about the hundreds of other billboard and sides of buildings covered with lettering on Gratiot with letters far larger than the Stross sign ???
They are clearly picking on Stross.
Are you the City Manager Truman who disrespected me when I spoke at a City Council meeting? Clearly, you are a governmental stooge with an ax to grind with a talented artist. His art studio is not a distraction at all. It is a blessing to have an art studio in Roseville. You, Sir, are an ignorant ingrate. Why do you not have the cajones to use your real name? America is for the brave, not the cowards. I suggest you take you and cowardliness to another country. You are an obstacle to the true potential of America, if you cannot sign your own name to your own words.
[…] Stross Case Reversed A few months ago I posted on the Ed Stross mural case. In that posting, I discussed a positive First Amendment decision by the Michigan Court of Appeals […]
The sale of protected materials is also protected. See Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5 & 768 (1988). “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Riley v. Nat’l Fed’n of Blind of North Carolina, 487 U.S. 781, 801 (1988)
The mural is free expression and is not commercial. Mr. Stross painted a work of art, not a sign. He lives and works at the building. You would certainly expect a landscape artist to have a stunning garden without assuming it was intended to attract business. What is the difference between that and the exuberant decoration of an artist’s building?
His “artwork” as it is called, is not good enough to be on the side of a building, at a busy intersection. Keep it inside, where we don’t have to be forced to look at it. Just watch a Roseville city council meeting once in a while, you will see what a flake and clown this so called artist really is.
And that is relevant how?
The mural is an expression of an idea, and as such it falls perfectly into what should be protected speech. An idea, by the way, does not have to be a particularly deep or profound one to be afforded such protection.
The individual character of the speaker is not an issue. Just because he appears peculiar to you does not mean he has fewer rights as an American citizen.
UPDATE Feb. 2nd 2009. How can this happen? According to the story above the decision was made in favor of the mural and the word “LOVE”. Now they are reversing the decision again???
Quoted from the artist’s myspace bulletin, “The State Supreme Court has ruled in favor of the city demanding I take my letters down. The City of Roseville lied to the courts , and said that I had just but up the letters LOVE after seven years of agreeing not to put up letters. When in fact there are thousands of pictures out there in print that these letters have been up there since Princess Dianna past away in 1997. Why has not the media, nor my lawyers pointed this out, and allowed the Supreme court to believe I was the one who changed my mind after seven years, when in fact the city was the one who decided to change there mind about the definition of no lettering. When I questioned this bizzare request of no lettering back in 1997, I was told no commercial lettering, and that if all I wanted to do was add the title of the mural with the word Love, it will be accepted.”
I JUST CAN’T BELEIVE THIS CITY IS SO FULL OF HATE THAT IT CAN’T STAND FOR LOVE TO BE DISPLAYED. This artist, that so many on the city council have a personal vendetta against, is the same man who has a heart for the poor and homeless and gives many a warm place to get out of the freezing cold and avoid literally freezing to DEATH!! If only we had more people in the world like Edward GONZO Stross — willing to STAND UP for LOVE and actually do something about the suffering of our fellowman – well then Roseville would be a Lovely place to live. Right now the leadership of the city needs to get their priorities in order because they are leaving the citizens feeling shame for living in a city where such hatred and self-serving vindictiveness can exist. I can’t believe the officials of the city will spend tax payers money going after Gonzo. With all the money spent on court fees and lawyers, by now they could have made a difference and shown LOVE to the needy in a big tangible way. The city of Roseville needs to apologize to Gonzo, and instead acknowledge the good works for the homeless and the beauty and pride in our city that he promotes.
It says in The Bible that God is Love. Thus, the City of Roseville is not only against Love, but against God, and thus, against America.
Get over it.
Your pettiness is getting old.
Mike Wrathell, Esq. & Artist.
PS: Come to the opening of the Forbidden Love show on February 21, 2009! 6pm to 11pm! I have 3 works in the group show!
Roseville is run by the biggest bunch of half-wits I have ever encountered.
Calling the artwork a distraction while it is surrounded by hundreds of other far more obnoxious advertising only underlines the stupidity of our city leaders. The Stross art adds a little class to Gratiot.
Speaking of boobs
I was teaching in Roseville Community Schools and was asked to show a movie. The movie was Liar Liar with Jim Carey. In one scene, Jim Carey gets on an elevator with a woman with large breasts and a low-cut shirt. Carey looks at her and starts making sucking sounds and says he wants to squeeze them. In another scene, Carey calls his boss a “dick head.” Those are just two examples of the profanity in the movie.
I asked the person in charge (acting principal) if they thought the movie was appropriate for the kids and she said, “yes, we have shown it before, the kids love it.”
Need I say more?
I just drove past Ed’s Roseville studio yesterday. He has changed the image by adding a beautiful American flag and God’s hand is touching the edge of it. There are cherubs on the section above the main image. Among the cherubs are rather delicate letters which spell out the word, “Love.”
My thoughts were that:
(1) Paintings from throughout art history have incorporated lettering as part of their composition (think: “Gloria in excelsis Deo”.)
(2) This mural is so much an addition and benefit to the neighborhood and uplifts a frankly ugly, bland city corner so much, that Roseville ought to consider rewarding all businesses which paint murals on the sides of their buildings. Homeowners, too.
Many other cities have discovered that art revitalizes decaying neighborhoods and downtowns. Providence, Rhode Island saved its downtown area by encouraging artists to live there at lower cost and studio spaces in empty buildings. The “Torpedo Factory” revitalized an entire area of Alexandria, Virginia by converting an old weapons factory to artist’s studios. Try buying a home in that neighborhood today – chance are you won’t be able to afford it. Los Angeles has an active mural program.
Too bad more Michigan cities have not yet discovered this magic (and colorful) formula. One could die of stifling Midwest conservatism here.