A federal court has sided with the Cozy Inn in a lawsuit involving the City of Salina.
A ruling was released by the court late Wednesday morning. U.S. District Court Judge Toby Crouse ruled that the City of Salina violated the First Amendment by ordering the Cozy Inn to stop painting its UFO-themed mural. According to the Kansas Justice Institute, who is representing the Cozy Inn in the case, it marks a major legal victory for the century-old burger restaurant and free speech advocates.
Steve Howard, owner of the burger joint, filed the lawsuit with help from Kansas Justice Institute in early 2024 after Salina officials told him to stop painting the mural. The Cozy has been a Salina institution for over a century, serving hamburgers from its small storefront since 1922.
“Salina is my hometown, I love it here,” says Mr. Howard. “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. Thank you for standing behind me and supporting me through this,” Howard continued.
The dispute began in November 2023 when Salina officials told Mr. Howard he couldn’t finish the mural. Salina considered the artwork a regulated sign instead of an unregulated mural. That’s
because Salina believed the mural’s flying UFOs too-closely resembled hamburgers—The Cozy’s signature item.
“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,” says Sam MacRoberts, KJI litigation
director. “That’s not just unfair, it’s unconstitutional,” MacRoberts continued. “It’s textbook content-based discrimination and the First Amendment doesn’t allow that,” MacRoberts said.
“We’ve been consistent since day one, Salina’s code—and the way it was enforced—was unconstitutional,” MacRoberts continued.
In his opinion, District Court Judge Toby Crouse ruled that Salina’s code violated the First Amendment.
The opinion contained the following quotes:
- “Salina’s mural-sign distinction does not survive [constitutional] scrutiny.”
- “Salina has not met its burden to demonstrate that its distinction between signs and murals is narrowly tailored to promoting the
city’s aesthetics, safety, or property values.” - “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.”
- “As explained above, the uncontested facts demonstrate that Salina has presented no evidence connecting its solution—distinguishing between signs that pertain to the goods and services sold on-site and murals that do not—to its stated interests. As a result, the plaintiffs’ motion for summary judgment on their First Amendment content discrimination claim is granted, and Salina’s motion is denied.”
- “By putting Howard’s [permit] application on hold, Salina has indefinitely suppressed his and Cozy Inn’s expression. That deep freeze is the exact situation that the prior-restraint doctrine forbids.”
- “Because the definition of sign is unlawful, Salina cannot make any determination as to whether a display is a mural or sign without violating the First Amendment.”
“The ruling is clear, to the point, and correct. Salina’s officials don’t get to play art critic, picking and choosing which murals stay, and which go. The right to free speech doesn’t work that way and
never has. At the end of the day though, because of Steve and The Cozy, Salina’s mural-scene just got a little bit better,” MacRoberts continued.
The court did side with the City of Salina in part of the case, though. The judge determined Salina has shown that its sign ordinance is not impermissibly vague, warranting summary judgment in Salina’s favor on the Cozy;s Fourteenth Amendment claim of equal protection of the laws” and that states cannot deprive any person of “life, liberty, or property, without due process of law”.
The city of Salina has paid over a half-million dollars in litigation costs related to the lawsuit.
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