But Is It Art?

St. Louis’s Comprehensive Sign Control Regulations regulate the display of “signs” — including on private property, and not limited to commercial ads — and define sign this way:

“Sign” means any object or device or part thereof situated outdoors which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business product, service, event, or location by any means including words, letters, figures, designs, symbols, fixtures, colors, motion illumination or projected images. Signs do not include the following:

a. Flags of nations, states and cities, fraternal, religious and civic organization;

b. Merchandise, pictures of models of products or services incorporated in a window display;

c. Time and temperature devices;

d. National, state, religious, fraternal, professional and civic symbols or crests, or on site ground based measure display device used to show time and subject matter of religious services;

e. Works of art which in no way identify a product.

Can this be constitutional? It seems to me impermissibly content-based, since it treats some speech — such as symbols of nations and some but not all organizations, and signs related to religious services — differently from other speech (such as a mural with the words “End Eminent Domain Abuse” inside a red circle, with a slash through them). Compare, for instance, Regan v. Time, Inc., in which the Supreme Court held that a ban on the depiction of currency was unconstitutionally content-based because of the exception for depiction “for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums.” “Under the statute, one photographic reproduction will be allowed and another disallowed solely because the Government determines that the message being conveyed in the one is newsworthy or educational while the message imparted by the other is not. The permissibility of the photograph is therefore often ‘dependent solely on the nature of the message being conveyed.’ Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” The same, I think, would be said of exceptions for national or organization flags or symbols, and of information related to religious services.

But beyond that, the distinction between “[w]orks of art” and signs that somehow are not artistic strikes me as unconstitutionally vague. What is and isn’t art is notoriously indeterminate, just as what constitutes “contemptuous treatment” of a flag is indeterminate. (The Supreme Court held the “contemptuous treatment” language was unconstitutionally vague, even when it seemed possible that clear statutes barring flag desecration would be permitted.) And that the vagueness problem arises in the context of a licensing scheme rather than a criminal prohibition doesn’t make it any better — the indeterminacy and potential for content discrimination within a licensing scheme makes such a scheme an unconstitutional prior restraint. Indeed, the Court’s obscenity test does ask whether a work has “serious artistic value,” but that test is hardly a great success story of the Court’s First Amendment jurisprudence, and the Court has resisted an attempt to extend it beyond the historically accepted obscenity exception.

Earlier this year, Neighborhood Enterprises, Inc. v. City of St. Louis (E.D. Mo.) held the ordinance was content-neutral, and seemed to endorse the “works of art” exception (though apparently no vagueness, as opposed to a content discrimination, challenge was brought). But I don’t think that’s right, for the reasons I gave above. I hope some industrious St. Louis resident decides to further challenge this law, or others decide to challenge any similar laws in other cities; please let me know if you know of anyone who is doing that.

UPDATE: It turns out that the case is being handled by the Washington State branch of the Institute for Justice (IJ is one of the leading libertarian public interest law firms in the country), and that an appeal is now pending before the Eighth Circuit. I’ve uploaded the opening brief and the reply brief.