Ed Stross Case Reversed

If you look really closely, you can see the hand giving the middle finger to the First Amendment

If you look really closely, you can see the hand giving the middle finger to the First Amendment

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 regarding a mural artist who put the word “LOVE” on his mural — something his town’s elders found to be a violation of a local ordinance. The Michigan Court of Appeals tossed out the conviction since the ordinance was held to be an unconstitutional infringement upon Stross’ free speech rights.

The Michigan Supreme Court reversed, holding that Mr. Stross missed his opportunity to raise a challenge to the ordinance.

The Court of Appeals erroneously reached this conclusion, in our judgment. At the time defendant’s variance was granted, then-current MCL 125.585(11) required a party to challenge the constitutionality of the variance within 21 days. Defendant’s painting the word “LOVE” on the sign clearly violated the “lettering” condition of the variance. Because this statute prescribed the relevant procedure for challenging the constitutionality of the conditions, defendant was obligated to challenge these conditions in accordance with this procedure. His failure to do so precludes him from raising his constitutional challenge eight years later. (source)

It seems awfully strange that the Michigan Supreme Court would brush off a Court of Appeals case like this. However, this illustrates the danger of accepting a variance to an unconstitutional ordinance.

2 Responses to Ed Stross Case Reversed

  1. edward stross says:

    Those letters were up there from the very begining, 7 years later they changed there minds, I was told that provision meant no commercial lettering. There are many murals in the city, and they all have letters. the only difference is that these companies donate, and put up campaign signs of the elected officials that are against free speech. I thank you so much for your concern about my plight.

  2. MotorCityMe says:

    Hello Mr. Stross:

    I love your murals, Keep up the painting and don’t get discouraged. Your mural is non-commercial and…

    …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. You have painted a work of art, not a sign. You live and work at the building. One 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? None that I can see.

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