CONCORD, N.H.—On Monday, U.S. district court judge Joseph Laplante ruled that Conway, New Hampshire’s attempt to force a local bakery to take down a mural of donut mountains painted by high school art students was “unconstitutional” and ordered the town to stop any efforts at enforcement. Leavitt’s Country Bakery owner Sean Young risked fines and criminal prosecution if he did not modify the mural or take it down. Sean and his attorneys from the Institute for Justice (IJ) tried to reason with Conway, but were forced to file a federal First Amendment lawsuit in January 2023 to protect Sean and the students’ artwork.
“I’m thrilled that the students’ artwork can remain up, I’m thrilled that my First Amendment rights have been vindicated, and I’m thrilled that the community can continue to enjoy the beautiful piece of art,” said Sean. “I think our mural is a wonderful depiction of everything that makes the Mount Washington Valley such a great place to live.”
Monday’s decision follows a one-day trial on Feb. 14, during which Judge Laplante heard testimony from Sean, as well as various town zoning officials regarding the town’s enforcement of its sign code against Leavitt’s.
“Conway’s enforcement is unconstitutional as applied to the plaintiffs’ display,” Judge Laplante wrote in the ruling. “Conway is enjoined from enforcing its ordinance against Leavitt’s bakery in the operationally illogical, textually unsupportable manner it employed in this instance.”
The town’s application of its sign code began soon after Kennett High School art students painted the mural above Leavitt’s in June 2022. Within a few days of the mural being unveiled, the town’s assistant building inspector saw a story about it in the Conway Daily Sun and cited Leavitt’s for violating the town’s sign code. Why? According to town officials, the mural was an illegal sign because it depicted something Leavitt’s sells: baked goods. But if it had depicted real mountains instead, no problem.
That’s what Sean learned when he tried to apply for a variance to keep the mural up. When Sean did so in September 2022, he had the backing of Conway residents with more than 1,000 people commenting positively on Leavitt’s Facebook page, and scores of letters to the editor published in the Conway Daily Sun arguing that the mural should stay. Yet the Conway Zoning Board of Adjustment (ZBA) voted unanimously against granting the bakery a variance. Then, in November 2022, the ZBA doubled down, again denying the variance.
IJ heard about Sean’s plight and sent Conway a letter in December 2022 urging them to back off and to work with IJ to reform the town’s unconstitutional sign code. But the town refused and, left with no other options, Sean and IJ filed the federal lawsuit to protect his First Amendment rights the following month. The mural has remained up while the suit is pending after a judge granted a temporary restraining order.
“Towns can certainly regulate signs. They can regulate the size of signs or the number of signs permitted, but what they can’t do is pick and choose what signs to regulate based on what they depict,” said IJ Attorney Betsy Sanz. “Today’s ruling makes it clear that what Conway was doing was discriminating against certain signs based on what officials thought they depicted. And that’s a clear First Amendment violation.”
In the ruling, Judge Laplante points out that, though the town said it had to regulate the Leavitt’s mural to maintain safety and protect the natural beauty of the town, the town allows other murals to stay up unregulated, even though the unregulated murals would have the same impact on the safety and beauty of the town as the Leavitt’s mural would. In Judge Laplante’s words, the town’s enforcement has “no rational connection to any of its stated interests” such as safety and beauty and is therefore unconstitutional.
IJ’s fight against similar violations of the First Amendment rights of small business owners throughout the country includes a 2020 victory that allowed a North Dakota saloon to keep up its mural, a 2017 win for a Florida video game store that wanted to display an inflatable Mario in front of its store, and a 2013 ruling which permitted a California gym to advertise on a sandwich board out front.