October 1, 2009 -- Today, the Colorado Court of Appeals agreed with the ACLU in a case challenging the constitutionality of the City of Englewood’s sign code. The case was brought on behalf of Mike Mahaney, an Englewood shop owner whose mural depicting an Alice in Wonderland scene prompted controversy and citations for allegedly violating the City’s sign code.
In a unanimous decision, a three-judge panel of the Court overturned a previous trial court ruling in favor of the city, declaring, “We conclude that the code’s special review procedure constitutes a constitutionally impermissible prior restraint on free speech.”
“This is a welcome victory for the First Amendment,” said ACLU Legal Director Mark Silverstein. “It is a valuable reminder that free expression is our most fundamental right and that government can never take lightly a decision to dictate what people may or may not say.”
Mahaney sells pipes and smoking accessories in his shop, Headed West. He painted murals on two sides of his store in an effort to deter graffiti vandalism. One of the murals depicted an Alice in Wonderland scene, including a hookah-smoking caterpillar and a white rabbit with a pill on its tongue. The City soon received complaints that the mural sent an “inappropriate” message regarding drug use. Although Mahaney painted over the pill, City officials were not satisfied. Mahaney’s employee, Mike Allard, was cited for three violations of the sign code, including failing to request a permit.
“These murals are artistic expression that is protected by the First Amendment and the Colorado Constitution,” said Tom Macdonald, who is representing Mahaney as an ACLU cooperating attorney. When the ACLU responded by challenging the City’s sign code itself, the City agreed to postpone prosecution of Allard pending a ruling on the constitutionality of the code.
