First Amendment

Government to Pizzeria: You Can Paint a Mural, Just Not One That Features Pizza

Arlington County's free-speech-trampling sign code forbids businesses from depicting the goods they sell on exterior murals.

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Both commercial freedom and creative freedom suffered a devastating blow in Arlington, Virginia, this past week. County officials have forced a local pizza joint to paint over a mural that adorned the outside of the restaurant.

In November of last year, local favorite Goody's spruced up the exterior of its Clarendon location with a mural depicting pizza alongside various common toppings, such as mushrooms, tomatoes, and olives. The idea was to "get a little more attention from people walking by," owner Glenda Alverez tells the local news site arlnow.com.

Unfortunately for Alverez and her business, the mural turned out to be against the law. Under Arlington County's sign code, no mural painted on the outside of a business may depict the products sold inside.

Had the pizzeria's mural featured car parts, clothing, or something else that the restaurant doesn't sell, the artwork would likely have escaped the enforcers' notice. Instead, zoning officials promptly notified the business that it was out of compliance and that its exterior would likely have to be repainted. This past week, the mushrooms and olives gave way to a uniform lime green paint job.

Forcing a business to repaint a mural because of its content is not just petty. According to Robert Frommer, an attorney with the libertarian Institute for Justice, it is unconstitutional. If a code says that "certain subjects or topics…are prohibited," he explains, that means it's "preventing you from speaking on certain subjects just because they don't like the message." Therefore, he argues, the law violates the First Amendment.

In 2011, Frommer and the Institute of Justice sued Arlington over a similar case of mural censorship. That time, officials told Wag More Dogs, a dog grooming business, that a canine-depicting mural on the exterior wall of its building (which happened to face a dog park) would have to be covered by a tarp until it could be repainted.

Arlington County argued that its regulations existed to protect the county's aesthetic and to prevent drivers from being distracted by flashy advertisements. The federal courts ultimately sided with the government, and in 2012 the doggie mural was painted over.

The U.S. Supreme Court has subsequently broadened its First Amendment protections, ruling in the 2015 case Reed v. Gilbert that governments cannot place content-based restrictions on signs. Because of that, Frommer thinks the same case would go a different way today.

Sign regulations, he adds, can be incredibly onerous for small businesses trying to attract customers. He thinks cities should restrict themselves to regulating physical aspects of signs that might pose a health or safety risk.

"We're worried about signs falling over or distracting someone," says Frommer. "Whether I have dogs or pizza or cats or ponies doesn't weigh into that at all."

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70 responses to “Government to Pizzeria: You Can Paint a Mural, Just Not One That Features Pizza

  1. paint car parts w/pizza ingredients on them

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  2. The first clue you’re dealing with busy bodies with nothing better to do is if they use the word “aesthetic” in their argument.

    1. Aesthetics are important. They’re also subjective, and enforcing one over another at the point of a gun is morally reprehensible.

  3. but your honor, t’s not a pizza it’s a flat bread…

    1. You’reHonor, it’s a pizza oven, and we don’t sell pizza ovens!

      1. I think the picture in this piece is just a stock photo. A little clicking through on links will get you to what appears to be a portion of the actual mural. It’s also shown, currently, on their main web page. I see a lot of pizza components — but I doubt they sell those individually. However, there appears to be a fully born pizza slice depicted up on the gable end so that would seem to be a possible violation – esp. since they do sell pizza by the slice.

        Perhaps they could have just repainted the gable pizza slice to depict a slice of Chicago style p**za. Since they seem to sell only real New York style pizza, there should then be no problem with the ordinance as everyone knows Chicago style p**za is unrelated to pizza.

        (I wonder how far this goes – can they paint a mural which has a cow on it? After all, cheese comes from cows and the do sell pizza with cheese on them.

    2. If it’s got pineapple on it, it’s not pizza

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  4. Tell them it’s not a pizza… tell them it’s a guy firing enamel jewelry.

  5. This past week, the mushrooms and olives gave way to a uniform lime green paint job.

    Should have read the article. They complied, so nothing to see here.

  6. Signs are ‘economic action’, not free speech. Therefore they are not protected by the First Amendment. (According to resident expert.)

    1. Not seeing any connection, and IJ certainly didn’t agree.

    2. 1. That’s not what Prof Bernstein has said.
      2. That’s emphatically not what he said in the article you linked to about the Texas BDS lawsuit.

      1. 1. You sure? Sure looked like that to me.

        A sign that says “No Jews” is illegal because it’s economic action, not mere speech.

        A sign that says “Pizza For Sale” would also be an economic action (whatever that means), not mere speech.

        2. I read that article and this guy sounds more like a typical lawyer than a libertarian.

  7. Tell them it’s not pizza. It’s deep dish.

    Or put pineapple on it since no self-respecting human being would sell that and call themselves a pizzeria.

    1. This winter I’ve made Hawaiian pizza twice. Best pizza I’ve made or had, and roomie agrees.

      1. *best open faced sandwich

    2. Deep dish sold at a pizza joint is a casserole with a crust.

      Pizza with pineapple on it is tasty pizza.

  8. Ironic for a business called wag more dogs to have this sort of trouble.

  9. “In 2011, Frommer and the Institute of Justice sued Arlington over a similar case of mural censorship. That time, officials told Wag More Dogs, a dog grooming business, that a canine-depicting mural on the exterior wall of its building (which happened to face a dog park) would have to be covered by a tarp until it could be repainted.
    Arlington County argued that its regulations existed to protect the county’s aesthetic and to prevent drivers from being distracted by flashy advertisements. The federal courts ultimately sided with the government, and in 2012 the doggie mural was painted over.”

    ‘Congress shall make no law […] unless some bureaucrat doesn’t like the looks of something’
    My copy is missing that last clause; guess it’s too old.

    1. This is a county, not the Federal government. Get it straight.

      Granted, the worst tyranny comes from local government, but still keep it straight.

      1. “This is a county, not the Federal government. Get it straight.”

        Pretty sure a county is constrained by the federal constitution.

        1. Fourteenth Amendment.

          “Arlington County argued that its regulations existed to protect the county’s aesthetic and to prevent drivers from being distracted by flashy advertisements. ” That is a content-independent rationale and can’t logically justify a content-based restriction.

  10. This reaches a whole new level of stupid.

  11. Under Arlington County’s sign code, no mural painted on the outside of a business may depict the products sold inside.

    Oh, FFS! What do the Arlington County office buildings have on *their* exteriors? Lady Justice would be OK, one supposes, because that’s not what’s being provided.

    1. THAT would be a fun lawsuit to file!

    2. Gracious, Rich, the question would never come up unless justice was being *sold* in those buildings, and we all know that never happens.

  12. Perhaps if they had painted a white apron-ed chef cutting a slice from a pre-op with extra ‘cheese’ covering the ‘pepperoni’ and ‘mushroom’ with the ‘sauce’ all over then Arlington County wouldn’t have had any problem with it.

  13. Arlington County argued that its regulations existed to protect the county’s aesthetic

    This is no part of any legitimate responsibility of any government. These motherfuckers think they’re an HOA.

    -jcr

  14. So the could paint a mural of an abortion being performed, as long as they don’t perform abortions?

    1. Anybody who has attempted to make a pizza knows full well that sometimes you need to abort a bad pie due to various oven related issues.

      1. Sometimes when you look at a can of crushed tomatoes…

      2. False. It’s always salvageable with more cheese, sauce, or by scraping off the burnt part (and for shame, pizzas should be cooked no more than medium rare).

  15. Perhaps a depiction of the prophet Mohammed would be a good replacement. Radical Islamist terrorists are notorious for their hate of pizza among other thing, so it’s not likely going to have a negative impact on business.

  16. Sign letterers can’t use text — pictograms and emojis only.

    1. Relating to something other than a sign, of course.

  17. Paint a mural of busybody government jackbooted thugs shooting people who are painting a mural (but that to-be mural can’t include pizza etc).

  18. How about painting all the ingredients separately?

    1. Excuse me, but this is kind of brilliant.

  19. It’s funny, my copy of the Constitution doesn’t read “Congress shall make no law, unless someone is trying to make a buck.” I don’t see why commercial speech should enjoy less protection. I’m okay with punishing demonstrably fraudulent speech, but otherwise the nannies can go piss up a rope.

    1. Because laws like this are written/read as, “You can’t sell pizza in a place that has a pizza mural.”

    2. It also doesn’t say “the Arlington County Board shall make no law,” so your pointing to the plain language of the Amendment only gets you so far.

  20. Pizza is an open face sandwich, so the mural doesn’t depict what they sell.

  21. Should have painted a Police Line around the building. Or a bunch of red tape wrapped around the building, strangling it.

  22. Naked chicks.

    Unless this is Pizzagate, in which naked chicks *are* what they’re selling.

    (Note to their attorneys: This is strictly a joke.)

  23. so what is the problem?

    This isn’t a freedom of speech issue

    This is the fact that they don’t want people making signs for their business disguised as art.

  24. Oh, I forgot to paste this:

    “Forcing a business to repaint a mural because of its content is not just petty. According to Robert Frommer, an attorney with the libertarian Institute for Justice, it is unconstitutional.”

    Even though they did it despite a law being in place telling them what was allowed or not.

    This article is as bad as when you read articles about how some veteran of is forced to take down his flag or face a fine every day that it remains to only then tell you deep in the article that there was already an HOA rule, local regulation or what have you that says you cannot display flags of any type. But, by the time you get that far in the easy to emotionally manipulate have already been hooked.

    1. HOAs are not government arms. No government can compel or silence speech, which includes printed words and pictorial depictions….

    2. Fuck off, slaver.

    3. I like the Flintstone house lady. Pay the fine, do nothing.

  25. They should have a caligrapher paint the text of the 1st Amendment large enough to cover the entire wall…

    1. best idea yet and add two slices of pizza at each end of the amendment for quotes

  26. It’s simple: let the auto parts store have a pizza mural, and the pizzeria have one with auto parts. But each mural includes an arrow facing the other store, with the lettering “NEXT DOOR”.

    1. Thanks to BBerry12 for giving me the wide grin I get from brilliant ideas.

  27. Paint a mural of Satan. Oh wait, nevermind, that will just get them shut down. Or even worse, they’ll be murdered in the name of God. Weak minds have weak solutions. Ha!

  28. Businesses just need to cooperate. Have the Dog Salon paint pictures of pizza on its wall while the Pizza Place next door puts dogs on its wall.

  29. This line is Awesome .”We’re worried about signs falling over or distracting someone,” says Frommer. “Whether I have dogs or pizza or cats or ponies doesn’t weigh into that at all.”

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  31. I see a bigger crime

    Is Glenda Alverez Italian?

    If not, she is guilty of cultural appropriation, for only an Italian can make a pizza.

    1. Isn’t pizza an American invention though?

      1. Doesn’t that really just make it all even worse?

  32. Remember, these are the same liberals who think that a gay man has a Constitutional right to sodomize another man and to call that man his “husband,” and to get a “marriage” license.

    1. Not nearly enough scare quotes in this comment. What are ya, queer or somethin?

    2. Oh oh. Sounds like a closeted homophobic homosexual.

    3. They after our bodily fluids as well. You forgot to mention that.

  33. I realize that this will not seem very libertarian, but local regulation regarding signage can be very desirable. It’s just that this particular regulation is unreasonable (though perhaps legal). My solution: prohibit any painted or decorated exterior walls which include lighting or lettering. Your will end up with a few ugly murals, but lots of very interesting and creative ones as well.

  34. The pizzeria should hire an artist to paint a mural, that when viewed up close looks like a bunch of nondescript images, but when viewed from afar may resemble an image of a pizza. Then retort, “it’s not our fault your mind creates an image that doesn’t exist”!

  35. Many communities put size limits to their signs and a mural may exceed that limit but that does not appear to be why they didn’t like it so they came up with other “safety reasons”

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