Court sides with restaurant on free speech claims but denies request for permanent injunction
U.S. District Court Judge Toby Crouse has ruled that the City of Salina violated the First Amendment when it ordered The Cozy Inn to stop painting a UFO-themed mural on its building, though the decision was more nuanced than a complete victory for either side.
In a 35-page memorandum and order issued Tuesday, Judge Crouse granted partial summary judgment to both parties in the nearly two-year legal battle. The court found in favor of Cozy Inn owner Steve Howard on two critical First Amendment claims while rejecting his request for a permanent injunction and siding with the City on a separate constitutional challenge.
The Court's Mixed Decision
Judge Crouse ruled that Salina's distinction between regulated "signs" and unregulated "murals" violated the First Amendment on two grounds: as unconstitutional content-based discrimination and as an improper prior restraint on speech. However, the court rejected Howard's claim that the city's sign code was unconstitutionally vague and denied his request for a permanent injunction against the city.
"Salina's mural-sign distinction does not survive [constitutional] scrutiny," Judge Crouse wrote, finding that the city failed to demonstrate its regulations were narrowly tailored to promote aesthetics, safety, or property values.
Background of the Dispute
The legal conflict began on November 6, 2023, when city officials halted work on the mural just three days after Howard began the project at 108 N 7th Street. The City determined that the artwork's flying UFOs too closely resembled hamburgers—The Cozy's signature item—making it an advertisement requiring permits rather than unregulated public art.
Howard filed suit with assistance from the Kansas Justice Institute in early 2024, arguing the city's enforcement violated his free speech rights. The case has reportedly cost Salina over $650,000 in litigation fees, and both parties had filed competing motions for summary judgment.
The Content Discrimination Ruling
The court's most significant finding addressed Salina's practice of treating displays differently based on their subject matter. City officials had determined that murals depicting products sold on the premises were "signs" requiring permits and subject to size restrictions, while murals depicting other subjects were unrestricted "art."
Judge Crouse found this distinction unconstitutional even under intermediate scrutiny—a lower standard than the strict scrutiny typically applied to content-based speech restrictions.
"It would seem illogical to argue that a hamburger-based display on a building housing a hamburger restaurant implicates interests requiring prohibition whereas that same display across the street on a building housing another business, perhaps a pizza restaurant, implicates none of those concerns," the judge wrote.
The court found that Salina presented insufficient evidence connecting its mural-sign distinction to its stated interests in traffic safety, aesthetics, and property values. The city's expert testimony and other evidence failed to explain why displays depicting a business's products would have different impacts than displays depicting other subjects.
The Prior Restraint Violation
Judge Crouse also ruled that Salina imposed an unconstitutional prior restraint by placing Howard's permit application on indefinite hold rather than approving or denying it within the required timeframe.
While Salina's sign code allows ten days for permit decisions—which the court found facially constitutional—city officials never made a formal determination on Howard's November 2023 application. Instead, they put it on hold pending a comprehensive review of the city's sign regulations.
"By putting Howard's application on hold, Salina has indefinitely suppressed his and Cozy Inn's expression," Judge Crouse wrote. "That deep freeze is the exact situation that the prior-restraint doctrine forbids."
The court rejected Salina's argument that Howard had consented to the delay, finding no evidence in the record to support that claim.
What the Court Rejected
Despite ruling in Howard's favor on the free speech claims, Judge Crouse sided with Salina on the vagueness challenge. The plaintiffs had argued that key terms in the sign code—particularly the word "advertise"—were too vague to provide clear guidance.
The court disagreed, finding that "advertise" is commonly understood and not impermissibly vague. The judge noted that alleged arbitrary enforcement may indicate First Amendment problems but does not necessarily make a law unconstitutionally vague.
More significantly, the court denied Howard's request for a permanent injunction against the city. While granting a declaratory judgment that Salina's practices were unconstitutional, Judge Crouse found that Howard had not provided sufficient justification for why an injunction was necessary beyond the declaratory relief.
"Howard and Cozy Inn have not provided any argument or pointed to any evidence suggesting why a permanent injunction is necessary to ensure that Salina complies with the declaratory judgments issued against it," the court wrote.
Reactions and Next Steps
"Salina is my hometown, I love it here," Howard said in a statement released by the Kansas Justice Institute. "I'm incredibly excited I get to finish my mural. The reason I love this community, this town, is because of all of the support everyone has given me."
Sam MacRoberts, litigation director for Kansas Justice Institute, emphasized the broader implications of the ruling. "Salina's code would have allowed Steve to paint a mural depicting flying pizza slices, but not burger-esque UFOs, just because The Cozy sells sliders," MacRoberts said. "That's not just unfair, it's unconstitutional."
The City of Salina has not yet issued a statement regarding the ruling or whether it plans to appeal the First Amendment findings to the U.S. Court of Appeals for the Tenth Circuit.
What This Means
With the court's declaratory judgment, Salina can no longer enforce its mural-sign distinction based on whether a display depicts products sold on the premises. The ruling also prohibits the city from imposing indefinite holds on permit applications.
However, because the permanent injunction was denied, the practical implications remain somewhat unclear. The court expressed confidence that Salina would comply with the declaratory judgment without requiring an injunction, citing federalism concerns about federal courts interfering with local government operations.
The Cozy Inn, which has served hamburgers from its small Salina storefront since 1922, can now move forward with completing the UFO-themed mural that was halted in November 2023—though the specific mechanism for doing so may require further clarification given the denial of injunctive relief.
