Mural of high school students fighting in city reinforces the art of policing

It was a feel-good moment in June 2022 when high school students from Conway, New Hampshire unveiled the artwork they had been planning and working on for months. Above Leavitt’s Bakery, the students had painted a scene of pastries as mountains with a golden sun rising over the ridge.

But just a few weeks later, the good feelings were gone when a city code enforcement officer told bakery owner Sean Young that the artwork was not a mural, but a sign. And since that sign was too big, Sean would have to remove it or paint it over. Failure to comply would mean a fine of $275 per day.

Sean refused to see the high school students’ hard work come to nothing. After months of trying to take down the city, he filed a lawsuit with the Institute for Justice to protect his First Amendment rights. And while the city is still fighting in federal court over the mural, residents have recently redoubled their efforts to police the art.

Conway, like many other New Hampshire towns, is putting policy proposals up for a vote. Residents voted overwhelmingly in favor of a new order article that establishes a complex and burdensome approval process for art on private property. New Hampshire’s motto may be “Live Free or Die,” but in Conway, art will have to be approved by a committee.

Any murals on commercial properties must be approved by the city’s planning board. The board would be tasked with finding out whether a proposal would take up more than 25% of a facade or whether an artist’s logo would take up more than 2% of the mural.

But the geometry problems are the easy part of the commission’s new responsibility. There is no way that the commission’s job is to prevent every mural that is “commercial in nature.” Art may not contain prizes, products or services for commercial use. Any letters, symbols or references to the promotion of a product, company, brand organization or service are not permitted. And most subjectively, the proposed art must be “representative of the community and natural beauty of the Mount Washington Valley.”

Instead of cleaning up the mess the city made by threatening Leavitt’s Bakery, this has made the entire process more complex, arbitrary and unconstitutional. Sean’s attorney, Rob Frommer of the Institute for Justice, said the ordinance would “throw Conway out of the pan and into the fire” by creating additional lawsuits.

This ban on anything the city deems commercial is exactly what brought down code enforcement at Leavitt’s Bakery. If the high school students had chosen to paint real mountains instead of pastries, the mural would not be a “sign.”

Subjective regulation of art on private property is plainly unconstitutional. What is “representative of the community” is entirely within the eye of the beholder. This leaves room for committee members to approve art on favored businesses and deny it to businesses not in their good favor.

If art cannot contain any message that the city deems commercial, businesses should self-censor and carefully consider whether any part of the mural is at all related to the service they provide. Can’t a plumber paint a mountain stream because it has water in it? Couldn’t the hiking store paint Paul Bunyan when they sell axes? Who knows.

Ultimately, the desire to micro-manage murals is based on misplaced concerns that corporations will damage the “character” of a community with unsavory artwork. But business owners don’t decorate their locations to deter potential customers and their neighbors.

After the city proposed cracking down on Leavitt’s Bakery, the city realized there was another illegal mural that had been hanging for years without complaints. That company also had to sue the city after it was threatened with fines for a mural of butterfly wings that passersby regularly take selfies in front of.

Conway residents look at the blank spaces on business walls and imagine the dragons and terrifying beasts that could be painted. In reality, business owners are encouraged to create art that fits into the community. That’s exactly what the high school art class did for Leavitt’s Bakery. They thought of the beautiful mountains that surround their house and the delicious pastries that were in the shop.

For the residents of Conway, a federal court decision may be needed to remind them that artistic freedom of expression is a fundamental right.