Art or Ad? A Bitter Battle Over Sweet Treats

Before this year, the town of Conway was perhaps most notable for being small and located in New Hampshire. Conway is a sleepy town, home to just over 10,000 residents, a few tourist attractions, and a roadside establishment called Leavitt’s Country Bakery—the subject of a contentious case currently making its way through the courts.

The case, Young v. Town of Conway, concerns a mural that high school students painted on the once-blank façade above the awning of Leavitt’s Country Bakery. Sean Young, the owner of Leavitt’s, gave the students permission to paint the blank space however they wanted. The young artists decided to paint a sun rising over a line of baked goods. How wholesome and whole-grain, right? Young was thrilled. How appropriate for a bakery!

The problem? It was too appropriate for a bakery.

A Sign of the Times

According to the town’s zoning laws, the fact that the painting was located on a bakery and featured baked goods made it technically a sign for the bakery, not a work of art. And since it was classified as a sign rather than a mural (even though it was literally a mural), it technically violated the town’s signage statutes. The mural is quite large—about 90 square feet in total—which is about four times bigger than the sign code allows. The town thus has the right to demand the painting to be removed or replaced—if it was indeed officially a sign and not a mural.

Does the First Amendment Protect Donut Art?

Mr. Young’s argument against the removal of the painting is simple. The mural is a work of art, not a sign. And as you might know, artistic expression is protected by the First Amendment—which is kind of a big deal. The firm representing Young, the Institute for Justice, argues that the town’s demands are unconstitutional.

The Institute for Justice puts it like this on their website: “Government officials don’t get to tell people, including entrepreneurs and businesses, what they can and can’t paint . . . That’s why Sean [Young] has teamed up with the Institute for Justice to file a federal lawsuit challenging Conway’s unconstitutional sign code.”

It’s easy to see where Young and company are coming from. The Supremacy Clause within Article VI of the Constitution makes it pretty clear that federal law and the First Amendment preempt any laws that interfere with Americans’ freedom of speech. So unless the town of Conway’s arguably arbitrary sign codes suddenly leapfrog the Constitution on the hierarchy of legal supremacy, Young should have good reason to be confident that the court will see things his way.

But of course, the First Amendment isn’t a panacea. The courts have carved out exceptions limiting obscene speechthreats and fighting words, and some even more horrible types of so-called speech. That said, the Supreme Court has been more willing to uphold corporate speech in recent decades, which makes it all the more likely that it would be on Young’s side—if a case about a donut mural would even make it that far. But, you never know; SCOTUS does have a bit of a sweet tooth sometimes.

It Could’ve Been Sweet

This baked goods brawl didn’t have to go to court. Young and the zoning committee agreed to pause the hostilities back in February, deciding to let the townspeople vote on the issue. The election held in April included a vote on a provision that would change a definition in the sign code that would allow the mural to stay put.

Unfortunately for Young and the young artists, the townspeople voted against the change in definitions, saying that it would “only further complicate enforcement.” The vote failed, the zoning committee showed no signs of backing down, and Young was left with one option: to resume court proceedings and battle it out in front of a judge.

The town of Conway has until July 21 to respond to Young’s lawsuit, and both sides have to meet by August 4 to submit a report to the judge. Each side apparently believes that “there will likely be few if any contested issues of material fact.” In plain English? That means that it’s not a he-said-she-said; rather, it will be up to the courts to interpret how the law fits in to the facts, which are not in dispute.

Young wants the town to leave his donut painting alone, and asks for $1 in damages. The town wants the donut painting gone. The high school students who painted the donuts don’t seem to have too much invested in the case—they’re presumably busy watching TikTok or whatever it is high school students do these days. Whatever happens with this case, one thing’s for sure: it’s easily the most high-stakes First Amendment case about donut art to come out of Conway, New Hampshire in at least 10,000 years.

Related Resources:

‘Offensive’ License Plate Bans Violate Free Speech (FindLaw’s Legally Weird Blog)

Land Use and Zoning Basics (FindLaw’s Learn About the Law)

Making Sense of Local Government (FindLaw’s Learn About the Law)

Free Speech and the First Amendment (FindLaw’s Learn About the Law)

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