Update — Wag More Dogs Loses Appeal about Mural

Ceci n’est pas une publicité.

On December 2, 2010, Kim Houghton, owner of a dog daycare and grooming business in Virginia, Wag More Dogs, filed a lawsuit in federal court arguing that the Arlington County government violated her First Amendment rights when it ordered her to modify a mural on her building.   At the center of the controversy was an unauthorized 60-foot by 16-foot mural of cartoon dogs on a wall outside her store and facing a public dog park.  The county objected to the sign because it believed that the mural was nothing more than an advertisement for Ms. Houghton’s dog-oriented business, and in violation of the county’s sign ordinance.  The dog groomer argued that the objection was an unlawful regulation of art.

Many predicted (me and GothLaw), that the plaintiff had a real problem with her case — that the case was not about art, but about commercial speech.  The mural was nothing more than a high-concept advertisement.  Just because the mural doesn’t say the name of her business does not mean it is not an ad.

A federal court dismissed the lawsuit last year.

Today, as reported by WaPo, the Fourth Circuit upheld the lower court’s ruling that Arlington County “did not violate a business owner’s free-speech rights by requiring her to cover up a 960-square-foot mural.  The Court said that the ordinance is clear, content-neutral and narrowly tailored to enhance the county’s aesthetics.”

And, as many had predicted, the Court also concluded that the Wag More Dogs mural was commercial speech:

The three factors relied on by the Court in Bolger similarly counsel classifying Wag More Dogs’ painting as commercial speech. First, Wag More Dogs alleged in its complaint that the painting was meant to attract customers from the nearby dog park, which is tantamount to conceding that it was advertising. Second, the painting included cartoon dogs from the business’s logo. Because Wag More Dogs offers services rather than goods, the inclusion of part of its logo is analogous to referencing a specific product. Third, Wag More Dogs certainly had an economic motivation for displaying the painting, as it admitted in its complaint that it sought to “create goodwill with the people who frequented the dog park, many of whom were potential . . . customers.”  When viewed through the lens of Bolger, Wag More Dogs’ complaint fails to plausibly allege that the painting qualifies as noncommercial speech.

The opinion can be found at this link.

Source:  How Appealing

~ by siouxsielaw on May 23, 2012.