As a political protest, it has gotten more attention than a park full of Occupy protesters. It amuses. It polarizes. It sparks debate. It is an embarrassment to some and an indictment to others. It has made the front page of both the St. Louis Post-Dispatch and The St. Louis Daily Record. It has pitted ordinance-citing city officials against free speech advocates and, over the course of several years, the battle over the three-story mural has wound its way through the legal system, finally ending up before the U.S. Supreme Court. However, that august body declined to review the case, allowing to stand a previous decision by the 8th Circuit Court of Appeals that the St. Louis sign code violates the First Amendment. This development, which occurred in late February, 2012, had housing activist Jim Roos in a jubilant mood.
Roos owns a number of aging structures in an area south of downtown known as Bohemian Hill. After the city condemned 24 of his buildings for private development, Roos decided to fight back. On the side of one of his un-condemned buildings he commissioned a painting with the words “End Eminent Domain Abuse” within a red circle with a red slash through it. At the bottom is the attribution “by K. Hart.” The mural, which measures more than 360 square feet, offers an unobstructed view from Interstates 44 / 55 where they merge near downtown.
At issue was whether the message was a sign or an art mural or something else. The city argued in the 8th Court of Appeals that the mural, which it deems a sign, is illegal because it violates two counts of the zoning code for a residential area: It exceeds the 30 square-foot maximum permitted for a sign, and it is on the side of the building rather than the front. As for the political message being broadcast, case law has upheld a municipality’s right to regulate “the time, place, and manner of speech” through the enforcement of sign codes. But the 8th Circuit Court justices did not address these restrictions. Instead, the court looked at the sign code and its exemptions and exceptions in the definition of “sign”— illustrative art, flags, crests, and the like—and said the content must be scrutinized to determine whether it is a sign. The zoning code’s definition of sign contained content-based exemptions and exceptions, the 8th Circuit found. Extrapolating from this, it seems that Jim Roos’ creation is not strictly a sign per se, in that it is not selling something. Instead, it may be seen as a work of art expressing a sentiment and therefore not subject to restrictions of a sign code.