N.H. Bakery’s Mural Causes Town Beuracrats To Go Nuts Over Donuts

You might be a little surprised how many Techdirt posts have been done that involve donuts. I know, right? What a sentence! Still, we’ve got square donut trademarks, we’ve got donuts made to look like college sports teams, and we even have donut crumbs that some Joe Friday out there thought for sure was meth.

So here we are again, back on the topic of donuts… sort of. In New Hampshire, a small bakery recently welcomed some high school art students to paint an awesome mural on the front façade of the bakery. The town, Conway, is a mountain town, and so the students painted the mural to be the sun partially shining out over a series of pastries designed to look like the nearby mountain range. Here it is below in its awesome glory.

Pretty cool, right? Well, not according to Conway’s zoning board, which decided that the mural wasn’t art at all, but an advertisement for the bakery instead. And therefore it violated zoning laws and had to go.

Then the town zoning board got involved, deciding that the pastry painting was not so much art as advertising, and so could not remain as is because of its size. Faced with modifying or removing the mural, or possibly dealing with fines and criminal charges, Young sued, saying the town is violating his freedom of speech rights.

The painting could stay right where it is if it showed actual mountains, instead of pastries suggesting mountains, or if the building wasn’t a bakery.

“They said it would be art elsewhere,” Young told The Associated Press in an interview. “It’s just not art here.”

And it’s that last bit that just might be the board’s undoing in all of this. After all, we have a very specific federal law that prohibits a government entity like a zoning board from refusing to allow what it admits is artistic content due to its own desires and we call it the First Amendment. This mural, whatever else you might think of it, is clearly speech. The zoning board apparently admits that it’s also art. The board reportedly even indicates its main quibble is with the artistic choices within the art itself.

And the government simply isn’t allowed to do that.

Following a longstanding democratic tradition of New England town meetings, residents deliberated how to define a sign before ultimately voting down changes last week. The local newspaper said the proposed wording wasn’t clear. Ultimately, a judge may have to resolve what remains an open debate in town.

Art teacher Olivia Benish, who worked with three students on the project, apologized to the board in September for not doing “due diligence” to make sure the mural would comply. She didn’t respond to requests for an interview. But she told the board members that there has to be a way to give students the opportunity to create positive public works of art “without upsetting the law and the powers that be,” according to the town minutes.

The bakery’s owner, Sean Young, sued the town in January. In his suit, for which he is seeking damages of precisely $1, he argues that his First Amendment rights are being violated and therefore asks that the mural be allowed to remain in place. Somehow amazingly, due to all of this, the town subsequently found several other murals for other businesses that violate the code due to their size and is hauling those businesses before the zoning board as well.

Meanwhile, Young is attempting to turn all of this nonsense into a positive, both for his business as well as for the high school in question.

Meanwhile, he’s selling T-shirts as a high school art department fundraiser, saying “This is Art” with the artwork on the front, and “This is a Sign” of a roadside “Leavitt’s Country Bakery” sign on the back.

“As Conway officials have confirmed, the town does not consider a painting to be a “sign” if it does not convey what town officials perceive to be a commercial message,” the lawsuit says. “But the town’s perception is that any mural depicting anything related to a business is a ‘sign.’ This is governmental discrimination based on the content of the speech” and the speaker’s identity, it said.

Even the local newspaper voiced its opinion, advocating that the town refrain from issuing any fines and instead rewrite the statute so that is both clear and incorporates artistic speech far better than it does currently.

But in the end, there is little differentiation between commercial art and art generally. The First Amendment still applies, even to commercial art. And if a town’s zoning board wants to cosplay so badly as the world’s worst HOA such that it prevents some high school art students from creating something awesome, then the problem in that equation is clearly not the mural.