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.