Morris v. New Orleans City

Filing 95

ORDER AND REASONS - IT IS ORDERED that the plaintiff's Motion for Summary Judgment (Rec. Doc. 82 ) is GRANTED, as set forth in document. IT IS FURTHER ORDERED that New Orleans Comprehensive Zoning Ordinance 21.6.V is hereby declared facially unconstitutional and that the City of New Orleans is enjoined from enforcing 21.6.V. Signed by Judge Martin L.C. Feldman on 7/9/2019. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NEAL MORRIS

CIVIL ACTION

V.

NO. 18-2624

CITY OF NEW ORLEANS

SECTION “F”

ORDER AND REASONS
Before
judgment

the
that

Court
the

is

the

City’s

plaintiff’s

motion

murals-permit

for

scheme

summary
is

an

unconstitutional prior restraint and content-based regulation of
expression, in violation of the First Amendment, and is void for
vagueness under the Fourteenth Amendment.

For the reasons that

follow, the motion is GRANTED.
Background
This civil rights lawsuit challenges the constitutionality of
the City’s murals-permit scheme, which regulates the installation
of artwork on all private property throughout the City of New
Orleans.
Neal Morris lives in Orleans Parish.

He owns residential and

commercial properties. He is perhaps not a fan of President Donald
Trump.

On November 4, 2017, Morris commissioned a local artist to

paint a mural on a commercial property he owns at 3521 South
Liberty Street.

The mural quotes a controversial comment made by

1

President Trump that had been recorded in a 2005 “Access Hollywood”
segment; the mural replaces with pictograms two vulgar words used
by Trump.
Just a few days after the mural was painted, a local news
outlet publicized a story about the mural and noted that murals
“are

typically

regulated

by

the

Commission and the City Council.”

Historic

District

Landmarks

The same day the news story was

published, on November 8, 2017, the City of New Orleans Department
of Safety and Permits sent Morris a letter advising him that the
mural violated a zoning ordinance.

Jennifer Cecil, the purported

director of the City’s “One Stop for Permits and Licenses,” wrote
that an inspection of the property on November 8 revealed a
violation

of

Section

12.2.4(8)

of

the

Comprehensive

Zoning

Ordinance, which, according to her letter, concerns “Prohibited
Signs—Historic District.”

Ms. Cecil described the violation:

The mural on the building on this property is
not allowed in that the property is zoned
residentially
and
murals
shall
not
be
permitted in any residentially zoned historic
district.
Morris was instructed to remove the mural, and warned that his
failure to do so by November 22, 2017 would
cause the Department of Safety and Permits to
initiate appropriate legal action to secure
compliance. The penalty for failure to comply
is a maximum fine or jail for each and every
day the violation continues plus court cost as
prescribed by law.
2

Ms. Cecil said Morris should contact her once the mural had been
removed so that she could re-inspect the property.
Not

to

be

outdone,

Morris

uncovered

several

stark

inaccuracies in the November 8 letter: Section 12.2.4(8) does not
in fact exist; there is no section titled “Prohibited Signs—
Historic District” in the CZO; nor does the CZO contain a blanket
prohibition on murals in residentially zoned historic districts.
On November 17, 2017, Morris politely wrote to the City requesting
clarification in light of the inaccuracies in Ms. Cecil’s letter. 1
Impolitely, apparently the City did not respond.
Anxious about being prosecuted, Morris sued the City on March
13, 2018, alleging that the murals-permit scheme (Comprehensive
Zoning Ordinance § 21.6.V et seq. and Municipal Code § 134-78A et
seq.) violate his First and Fourteenth Amendment rights.

His

complaint alleges that: (1) the City’s requirement that property
owners obtain advance government approval before receiving a mural
permit,

1

or

face

criminal

punishment,

subjects

him

and

At the conclusion of his letter to the City, Morris wrote:
Can you tell me whether my artwork is a mural
or a sign under the CZO, and can you explain
how this determination is made?
Again, I am attempting to comply with the
City’s zoning regulations, but I cannot tell
from the letter I received what the alleged
zoning violation is. I would appreciate your
clarification.
3

other

property owners to an unconstitutional prior restraint on speech
where approval or denial of a permit is left to the unfettered
discretion of City officials; (2) the City’s murals-permit process
is

an

unconstitutional,

content-based

restriction

on

speech

insofar as an applicant must pay a $500 fee and must submit a
drawing, which will be subject to the City’s “acceptability” review
before a mural is approved; 2 (3) the City’s murals-permit process
violates Morris’ and other property owners’ due process rights by
subjecting their artistic expression to prior review, indefinite
in duration, by unspecified officials using vague, overbroad, or
nonexistent standards; and (4) the City engages in selective
enforcement of its mural regulations in violation of the Equal
Protection Clause. 3
•

Morris’ complaint requests:

A preliminary (and ultimately permanent) injunction barring
the

City

from

enforcing

the

murals-permit

scheme,

Comprehensive Zoning Ordinance §21.6.V et seq. and Municipal
Code § 134-78A et seq.;

2

Morris also complains that “signs” are subject to a different
regulatory scheme, and that some signs are exempt from the permit
requirements, whereas no murals are exempt from the permit
requirement.
3 For example, Morris singles out a mural by artist Yoko Ono, which
was painted on November 15, 2017 on the Ogden Museum, without a
permit and without being cited for a zoning violation for the
mural. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2223 (2015)
(“And on public property, the Town may go a long way toward
entirely forbidding the posting of signs, so long as it does so in
an evenhanded, content-neutral manner.”).
4

•

A declaratory judgment that the City’s actions, policies, and
procedures

embodied

in

the

murals-permit

scheme

are

unconstitutional violations of the plaintiff’s rights under
the First Amendment, as well as the Due Process and Equal
Protection Clauses of the Fourteenth Amendment of the United
States Constitution.
•

Reasonable attorney’s fees, expenses, and costs under 42
U.S.C. § 1988.
In May of 2018, about two months after Morris filed suit, the

New Orleans City Council enacted M.C.S., Ordinance No. 27783, which
removed Sections 134-78A and 134-78B from the Municipal Code.

As

a result, the City’s murals-permitting scheme was found only at
CZO Section 21.6.V.

In addition, the City agreed that it would

not enforce its murals-permitting scheme against Mr. Morris for
any existing or additional murals painted on his properties during
the pendency of this lawsuit.

In light of the City’s non-

enforcement pledge, this Court, in its May 31, 2018 Order and
Reasons,

denied

as

moot

Mr.

Morris’

motion

for

preliminary

dismiss

the

plaintiff’s

injunctive relief.
Thereafter,

the

City

moved

to

complaint for failure to state a claim under Rule 12(b)(6).

On

October 18, 2018, the Court denied the City’s motion as to all
claims, except the plaintiff’s “class of one” Equal Protection
claim.

Faced with this Court’s unfavorable decision, the City
5

proceeded to amend its murals-permit scheme once again. Contending
that it had undertaken revisions of the CZO that it believed would
“change the course of this litigation, including mooting the case,”
the City moved to the stay these proceedings on December 12, 2018.
The next day, the Court held a status conference and denied the
City’s motion to stay.

However, the Court was “convinced that a

brief delay [wa]s warranted to give the City an opportunity to
remedy issues it faces in this lawsuit.”

Accordingly, the Court

continued the pre-trial conference and trial dates and admonished
the City “to act as efficiently and as quickly as possible . . .
in presenting a new Ordinance which the City feels addresses the
issues in this case.”
The City has now passed the successor ordinance.

On January

22, 2019, the City Planning Commission unanimously approved a text
amendment to the City’s murals-permit scheme, which modifies the
definitions of “sign” and “mural” in CZO § 26.6 and alters the
murals-permit application and approval process in CZO § 21.6.V.
The City Council adopted the amendment on April 25, 2019, and the
Mayor signed the measure into law on April 30, 2019.

Most

recently, on June 13, 2019, the City amended its mural regulations
for a third time, reducing the permit fee from $500 to $50.

As

currently drafted, the CZO regulates murals as follows: 4

4

Deletions to the CZO are represented by strikethrough text, while
new language is displayed in underlined and bold text.
6

Article 26.6 DEFINITIONS
Mural. A work of art painted or otherwise applied to or
affixed to an exterior surface that does not include any
on- or off-premise commercial advertising or does not
otherwise meet the definition of a sign as set forth in
Article 26 of the Comprehensive Zoning Ordinance.
Sign. Any structure, display, device, or inscription
which is located upon, attached to, or painted or
represented on any land, structure, on the outside or
inside of a window, or on an awning, canopy, marquee, or
similar structure, and which displays or includes any
numeral, letter work, model, banner, emblem, insignia,
symbol,
device,
light,
trademark,
or
other
representation used as, or in the nature of, an
announcement,
advertisement,
attention-arrester,
direction, warning, or designation of any person, firm,
group, organization, place, community, product, service,
business, profession, enterprise, or industry proposes
a
commercial
or
economic
transaction
through
advertisement; promotion; the direction of attention to
any
commercial
establishment,
product,
service,
industry, business, profession, enterprise, or activity
for a commercial purpose; or proposes such a transaction
through other means.
ARTICLE 21.6.V - MURALS
ARTICLE 21.6.V.1 – APPLICATION
a. No person, firm, or corporation may commence a mural
installation on a site without development plan and
design review approval by the Executive Director of
the City Planning Commission and the Design Advisory
Committee in accordance with Section 4.5. A separate
application is required for each mural on a site the
submittal of a mural permit application and subsequent
mural permit issuance by the Department of Safety and
Permits.
b. Any structure within a local historic district or on
a historically designated structure requires approval
of the Historic District Landmarks Commission or Vieux
Carré Commission prior to review by the Design
7

Advisory Committee the issuance of the mural permit
by the Department of Safety and Permits.
If the
Historic District Landmarks Commission or Vieux Carré
Commission does not approve the mural, the mural is
prohibited.
ARTICLE 21.6.V.2 – REQUIRED SUBMITTALS
a. Proof of ownership or written permission of property
owner.
b. Building elevation drawn to scale that identifies:
i.
ii.
iii.
iv.
v.

The
The
The
The
The

façade on which the mural is proposed.
location of existing and proposed murals.
proposed mural dimensions.
height of the mural above grade.
building eave/cornice and roofline.

c. General drawing sketch and written description of the
type of mural (painted, mosaic, etc.) specifically
identifying any commercial elements. This requirement
shall solely serve to allow the City to determine
whether the proposal is more properly permitted as a
sign, as defined in Article 26 of the Comprehensive
Zoning Ordinance.
The Department of Safety and
Permits shall make this determination within 15 days
of submittal.
d. If the mural is not painted directly on a wall
surface, details showing how the mural is affixed to
the wall surface.
ARTICLE 21.6.V.3 – STANDARDS
a. Murals are considered public art. Murals are not
permitted to advertise any product, service or brand.
No
off-premise
advertising
is
permitted.
Noncommercial messages are permitted.
b. Mural areas will not be painted on or obscure
architectural features such as windows, doors (other
than
egress-only),
pilasters,
cornices,
signs
required by the City Code, or other building trim,
feature bands, and other recessed or projecting
features.

8

c. Murals with any element that weighs more than seven
(7) pounds per square foot, or in total weighs more
than four-hundred (400) pounds require structural
review and approval from the Director of the
Department of Safety and Permits.
d. Building owners are responsible for ensuring that a
permitted mural is maintained in good condition and
is repaired in the case of vandalism or accidental
destruction.
e. Muralists and building owners are encouraged to use
protective clear top coatings, cleanable surfaces,
and/or other measures that will discourage vandalism
or facilitate easier and cheaper repair of the mural
if needed.
Contending that the constitutionality of the City’s muralspermit scheme is ripe for this Court’s review, the plaintiff now
moves for summary judgment on his requests for declaratory and
injunctive relief.
violates

the

First

The challenged law, the plaintiff contends,
and

Fourteenth

Amendments

to

the

U.S.

Constitution because it equates to a prior restraint and a contentbased restriction of speech, and because it offers little guidance
as to the distinction between a “sign” and a “mural,” which are
treated separately in the ordinance.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of

9

fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See id.

In this regard, the non-moving party must do

more than simply deny the allegations raised by the moving party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646,
649 (5th Cir. 1992).

Rather, he must come forward with competent

evidence, such as affidavits or depositions, to buttress his
claims.

Id.

Hearsay evidence and unsworn documents that cannot

be presented in a form that would be admissible in evidence at
trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat

summary

judgment

“[T]he nonmoving party cannot

with

conclusory

allegations,

unsubstantiated assertions, or only a scintilla of evidence.”
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal
quotation marks and citation omitted).
evidence

is

merely

colorable

.

.

.

or

Ultimately, “[i]f the
is

probative,” summary judgment is appropriate.

not

significantly

Anderson, 477 U.S.

at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th
10

Cir. 1994) (“Unauthenticated documents are improper as summary
judgment evidence.”).
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most favorable
to the non-moving party.
(2007).

Scott v. Harris, 550 U.S. 372, 378

Although the Court must “resolve factual controversies in

favor of the nonmoving party,” it must do so “only where there is
an actual controversy, that is, when both parties have submitted
evidence of contradictory facts.”

Antoine v. First Student, Inc.,

713 F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and
citation omitted).
II.
A.
Morris claims that the City’s murals-permit scheme violates
the First Amendment as (1) a content-based regulation of expression
and (2) a prior restraint of speech.

Although he alleges that the

scheme is unconstitutional both facially and as applied to him, it
is undisputed that the City amended its mural regulations following
the events giving rise to this lawsuit.

Therefore, Morris asserts

a facial challenge to the ordinance.

To prevail on a facial

challenge in the First Amendment context, as here, Morris must
demonstrate that: (1) “no set of circumstances exists under which
the [challenged ordinance] would be valid,” or (2) “a substantial
number

of

its

applications

are
11

unconstitutional,

judged

in

relation to the statute’s plainly legitimate sweep.” United States
v. Stevens, 559 U.S. 460, 473 (2010) (citations omitted).
B.
The First Amendment, applicable to the states through the
Fourteenth Amendment, instructs that a state “shall make no law .
. . abridging the freedom of speech[.]”
XIV.

U.S. CONST. amend. I;

Murals are artwork, which has long been held to be expression

protected by the First Amendment.

Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 574
(1995)(noting

that

“the

Constitution

looks

beyond

written

or

spoken words as mediums of expression,” and that “the . . .
painting

of

Jackson

Pollock,

music

of

Arnold

Schoenberg,

or

Jabberwocky verse of Lewis Carroll [are] unquestionably shielded”
by the First Amendment); White v. City of Sparks, 500 F.3d 953,
956

(9th

Cir.

2007)(holding

that

plaintiff’s

“self-expression

through painting constitutes expression protected by the First
Amendment”); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924 (6th
Cir. 2003)(“The protection of the First Amendment is not limited
to

written

expression,

or

spoken

words,

including

music,

but

includes

pictures,

other

films,

mediums

of

photographs,

paintings, drawings, engravings, prints, and sculptures.”); Bery
v. City of New York, 97 F.3d 689, 695 (2d Cir. 1995)(“Visual art
is as wide ranging in its depiction of

12

ideas, concepts and

emotions as any book, treatise, pamphlet or other writing, and is
similarly entitled to full First Amendment protection.”).
First Amendment protections also extend to signs, which are
undeniably “a form of expression.”
U.S. 43, 48 (1994).

City of Ladue v. Gilleo, 512

The Supreme Court has recognized that signs

pose distinctive problems: “Unlike oral speech, signs take up space
and may obstruct views, distract motorists, displace alternative
uses for land, and pose other problems that legitimately call for
regulation.”

Id.

Murals, as works of art housed on exterior

surfaces, pose similar problems.

As one First Amendment scholar

has observed, however, “artwork differs from other forms of speech,
particularly signage, in one critical respect: in the case of
artwork, the medium is commonly the message.”

Brian J. Connolly,

Reed, Rembrandt, and Wright: Free Speech Considerations in Zoning
Regulation of Art and Architecture, 41 No. 11 Zoning and Planning
Law Reports NL 1 (Dec. 2018); see also Christina Chloe Orlando,
Art or Signage?: The Regulation of Outdoor Murals and the First
Amendment, 35 CARDOZO L. REV. 867, 869-70 (2013) (“Although mural
law is still in its infancy, the convoluted status of the limited
case law has led to a war . . . a real fight around the country.”)
(citations omitted).

This case certainly focuses the troublesome

constitutional struggle between signage and artworks. 5

5

The Supreme Court has signaled little patience with contentbased distinctions between signs and other forms of public
13

C.
Morris submits that the City’s murals-permit scheme is an
unconstitutional content-based regulation of speech in three ways;
he claims it is content-based on its face, in its purpose, and
through its enforcement.
i.
To evaluate the constitutionality of a municipal ordinance
that regulates a form of expression, a court must first determine
the appropriate level of scrutiny to apply.

See Reed v. Town of

Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015).

“Content-based laws

– those that target speech based on its communicative content –
are presumptively unconstitutional and may be justified only if
the government proves that they are narrowly tailored to serve
compelling state interests.”
Supreme

Court

has

emphasized

Id.
that

(citations omitted).
there

categories of content-based regulations.

are

two

The

different

See id. at 2227.

First,

a regulation of speech is “content based” where the law “‘on its
face’ draws distinctions based on the message the speaker conveys.”
Id.

(citations omitted).

A facial distinction based on message

may be obvious, “defining regulated speech by particular subject
matter,” or subtle, “defining regulated speech by its function or

expression.
See Reed, 135 S. Ct. at 2228 (“[A]n innocuous
justification cannot transform a facially content-based law into
one that is content neutral.”).
14

purpose.”

Id.

In either case, the regulation “is subject to

strict scrutiny regardless of the government’s benign motive or
Id. at 2228. 6

content-neutral justification.”
content-based

regulation

exists

where

a

Alternatively, a

statute

is

facially

neutral but “cannot be ‘justified without reference to the content
of the regulated speech,’ or [was] adopted by the government
‘because of disagreement with the message [the speech] conveys.’”
Id. at 2227 (quoting Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989)).
law

is

Accordingly, “strict scrutiny applies either when a

content

based

on

its

face

or

when

justification for the law are content based.”
Regulations
jurisprudence

of

commercial

defines

as

speech,

“speech

the

purpose

and

Id. at 2228.

which

proposing

Supreme
a

Court

commercial

transaction,” are superficially subjected to another level of
scrutiny.

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n

of N.Y., 447 U.S. 557, 562 (1980).

Under Central Hudson, a

regulation of commercial speech is constitutional if: (1) “the
asserted

governmental

interest

is

substantial;”

(2)

“the

regulation directly advances the governmental interest asserted;”

6

“‘The vice of content-based legislation .
always used for invidious, thought-control
lends itself to use for those purposes.’”
Hill v. Colorado, 530 U.S. 703, 743
dissenting)).
15

. . is not that it is
purposes, but that it
Id. at 1229 (quoting
(2000) (Scalia, J.,

and (3) the regulation “is not more extensive than is necessary to
serve that interest.”

Id. at 566. 7
ii.

Morris

contends

that

the

murals-permit

scheme

is

an

unconstitutional content-based regulation of speech in three ways:
(1) “murals” are regulated differently from “signs” based on their
content; (2) murals are explicitly subject to content review; and
(3)

the

City

improperly

selectively

enforces

the

permit

requirement, citing only those murals about which it has received
complaints. The City counters that the scheme is a content-neutral
regulation of speech that satisfies the time, place, and manner
test; the City maintains that: (1) it has the right to treat
commercial

speech

(signage)

differently

than

non-commercial

artwork (murals); and (2) it only reviews content to confirm that
a proposed mural does not contain commercial speech.
The plaintiff first submits that the murals-permit scheme is
content-based on its face in that it regulates murals because of
their

communicative

commercial speech.

content

–

artwork

that

does

not

contain

Invoking Reed v. Town of Gilbert, 135 S. Ct.

2218 (2015), Morris contends that this is a facial distinction
that violates recent Supreme Court jurisprudence.

Reed hints at

some Supreme Court support, although it dealt with signs only.

7

Any attempt to differentiate or reconcile Reed and Central Hudson
seems a baffling effort to resolve platitudes.
16

In Reed, the Supreme Court held that a town sign code was
facially content-based because the manner in which residents could
display

outdoor

communicative

signs

content.

depended
135

on

S.

Ct.

their
at

varying

of

Subjecting

2230.

forms

23

categories of signs to different size, location, and durational
regulations,

the

sign

code

treated

“ideological

signs”

most

favorably and imposed more stringent requirements on “temporary
directional signs.”
for

Sunday

Id. at 2224.

services

beyond

When a local church posted signs

the

time

limit

for

“temporary

directional signs,” town officials issued repeated citations, and
the church filed suit.
code

“single[d]

treatment,”

the

out

Id. at 2255-26.

specific

Court

subject

determined

Finding that the sign

matter

that

the

for

differential

regulations

were

facially content-based and subject to strict scrutiny review, even
though they did not discriminate among viewpoints within that
subject matter.

Id. at 2230-31.

Ultimately, because the town

could not demonstrate that its content-based distinctions were
narrowly tailored to serve its asserted interests in, for example,
aesthetics or traffic safety, the Supreme Court found the code
violated the First Amendment.

Id.

According to Morris, a comparison of the CZO’s definitions of
“mural” and “sign” makes clear that the City of New Orleans, like
the

Town

of

Gilbert,

subjects

17

public

messages

to

different

regulatory frameworks based on their content.

Section 26.6 of the

CZO defines “mural” and “sign” as follows:
Mural. A work of art painted or otherwise applied to or
affixed to an exterior surface that does not include any
on- or off-premise commercial advertising or does not
otherwise meet the definition of a sign as set forth in
Article 26 of the Comprehensive Zoning Ordinance.
Sign. Any structure, display, device, or inscription
which is located upon, attached to, or painted or
represented on any land, structure, on the outside or
inside of a window, or on an awning, canopy, marquee, or
similar structure, and which proposes a commercial or
economic transaction through advertisement; promotion;
the
direction
of
attention
to
any
commercial
establishment, product, service, industry, business,
profession, enterprise, or activity for a commercial
purpose; or proposes such a transaction through other
means.
If a display affixed to an exterior surface contains a noncommercial message in the form of artwork, it is categorized as a
“mural” and subject to the regulations set forth in CZO § 21.6.V,
but if the display conveys a commercial message, it is considered
a “sign” and regulated under Article 24. Because a zoning official
must review the content of a wall display to conclude that it
constitutes artwork and does not contain commercial speech, Morris
insists

that

the

murals-permit

scheme

is

a

content-based

regulation that must satisfy strict scrutiny to survive.
The City counters that its regulatory scheme does not trigger
strict scrutiny review.

It seeks only to regulate murals for one

distinct purpose – to determine whether a proposed mural requires
18

a sign permit.

Because the content review stops once an applicant

provides information establishing that the proposed mural does not
contain commercial speech, and because commercial speech enjoys
lesser constitutional protection, the City maintains that its
effort

to

differentiate

between

commercial

and

non-commercial

speech does not run afoul of Reed. 8
iii.
In contending that the murals-permit scheme is a facially
content-based

regulation,

Morris

submits

that

the

ordinance

creates two impermissible content-based distinctions: (1) noncommercial messages in the form of artwork versus non-commercial
messages

in

any

other

form;

and

(2)

artwork

that

contains

commercial speech versus artwork that does not contain commercial
speech.
First, Morris contends that the murals-permit scheme singles
out for regulation artwork, as opposed to any other type of noncommercial message, by defining “mural” as a “work of art painted
or otherwise applied to or affixed to an exterior surface that
does not include any on- or off-premise commercial advertising .
. . ” (emphasis added).

During discovery, the plaintiff seemingly

8

Reed itself counters the City’s argument. See Reed, 135 S. Ct.
at 2229 (“Innocent motives do not eliminate the danger of
censorship presented by a facially content-based statute, as
future government officials may one day wield such statutes to
suppress disfavored speech.”).
19

exposed an example of the content-based nature of the muralspermit application process. In early 2016, an applicant who sought
to install a mural called “The Life of Litter” was denied a mural
permit on the ground that the proposal constituted an informational
display, rather than a “work of art,” and therefore required a
sign

permit.

amendments,

Although
Morris

this

submits

occurred

that

similarly problematic structure.

the

before

the

recent

CZO

current

law

features

a

Because the CZO now defines

“mural” as a work of art affixed to an exterior surface that does
not contain commercial speech, a zoning official must nevertheless
review the content of a wall display to determine whether it
qualifies as a “work of art.”
The Court notes that another court in this Circuit recently
rejected a similar argument in declining to find a sign code to be
content based:
Here, Reagan and Lamar argue that if a viewer must “read
the sign . . . just to determine what rules apply, then
the regulation is content based under Reed.” They submit
that the City of Austin Sign Code is content based
because the regulations “require the City to look at the
content of the sign to determine whether it is an onpremise or off-premise sign,” to see if digital signfaces are permitted. They argue that “the location of
the structure itself is not what determines what rules
apply. Rather, the content of the sign determines what
rules apply.” “Does the content advertise something at
that location? If so, then the on-premise rules apply.
Does th[e] content advertise something not at that
location? If so, then the off-premise rules apply.”

20

Reagan and Lamar are urging an interpretation of
Reed that no court in this circuit has adopted. On their
reading, regulations governing stop signs are content
based because they must be read to determine its
governing provision under the Sign Code. On this view,
regulations imposing greater restrictions for commercial
signs—a well-established and constitutional practice—
would be content-based because a viewer must read a sign
to determine if the message was commercial or noncommercial.
In effect, Reagan and Lamar urge a rule
that would apply strict scrutiny to all regulations for
signs with written text.
Reagan Nat’l Advert. of Austin, Inc. v. City of Austin, No. 17673-RP, 2019 WL 1375574, at *7 (W.D. Tex. Mar. 27, 2019).
Court

finds

the

reasoning

doctrinally interesting.

of

the

Western

District

of

The
Texas

But not persuasive, or determinative,

for several reasons.
The murals-permit scheme also separates out commercial and
non-commercial speech.

This distinction is undeniably one that is

“content-based;” however, the Supreme Court has long recognized
that commercial speech is accorded “a lesser protection” than
“other constitutionally guaranteed expression.”

Central Hudson

Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557,
562-63

(1980);

see

also

Mass.

Ass’n

of

Private

Career

Sch. v. Healey, 159 F. Supp. 3d 173, 193 (D. Mass. 2016) (“The
Supreme Court has clearly made a distinction between commercial
speech and noncommercial speech . . . and nothing in its recent
opinions, including Reed, even comes close to suggesting that
well-established distinction is no longer valid”) (quoting CTIA21

The Wireless Ass’n v. City of Berkeley, 139 F. Supp. 3d 1048, 1061
(N.D. Cal. 2015)); Peterson v. Vill. of Downers Grove, 150 F.
Supp. 3d 910, 927-928 (N.D. Ill. 2015) (“[T]he [Reed] majority
never specifically addressed commercial speech . . . because . .
. the restrictions at issue in Reed applied only to non-commercial
speech . . . . [A]bsent an express overruling of Central Hudson,
which most certainly did not happen in Reed, lower courts must
consider Central Hudson and its progeny . . . binding.”) (emphasis
in

original).

But

the

discussion

continues,

and

the

point-

counterpoint between Reed and Central Hudson is a mere distraction.
Because § 21.6.V indirectly regulates commercial speech in
that it bans commercial messages in murals, the murals-permit
scheme certainly remains subject to review under Central Hudson.
Before installing a non-commercial work of art on an exterior
surface, a building owner or artist must obtain a mural permit; to
do so, he must pay a $50 fee and submit proof of the owner’s
permission, information about where and how the mural will be
affixed,

a

written

description

identifying

any

commercial

elements, and a general sketch of the proposed mural to confirm
that it does not contain commercial speech.

See CZO § 21.6.V.

However, where a work of art conveys a commercial message, a
building owner or artist must obtain a sign permit; this also
involves paying a fee and providing a written description of the

22

proposed work and the proposed text of the sign.
signs are also subject to size restrictions.

Unlike murals,

See CZO § 24.11.F.

Central Hudson instructs that to sustain a restriction on
commercial
asserted

speech,

the

governmental

City

must

interest

demonstrate
is

that:

substantial;”

(1)
(2)

“the
“the

regulation directly advances the governmental interest asserted;”
and (3) the regulation “is not more extensive than is necessary to
serve that interest.”

Central Hudson, 447 U.S. at 566.

Although

the burden of justifying a regulation of commercial speech is less
onerous than that for a content-based regulation of non-commercial
speech,

the

conjecture.”
To

the

hurdle

“is

not

satisfied

by

mere

speculation

or

See Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).

contrary,

“a

governmental

body

seeking

to

sustain

a

restriction on commercial speech must demonstrate that the harms
it recites are real and that its restriction will in fact alleviate
them to a material degree.”

Id.

Here, the City asserts that it regulates murals only to
regulate commercial speech and that “a mural permitting process is
necessary to effectively regulate commercial signage.”

In blindly

intoning this civic interest, the City fails to indicate how the
differential regulation of commercial and non-commercial artwork
advances any substantial governmental interest, such as traffic
safety or community aesthetics.

In other words, the regulation of

commercial signage appears to be a means to an end that the City
23

has

not

identified.

Insofar

as

that

purpose

is

related

to

community aesthetics, there is nothing in the record to suggest
that commercial messages in artwork are more unsightly than noncommercial messages in artwork.
Because the City of necessity must determine whether a mural
contains commercial speech, and, therefore, should be regulated as
a sign, the ordinance is a prohibited free speech enemy and does
not pass strict scrutiny, or even a more relaxed scrutiny test.
The

murals-permit

distinguishes

scheme

between

is

unconstitutional

commercial

and

insofar

non-commercial

as

it

artwork.

Regulations of commercial speech (such as signs) are not subject
to

strict

scrutiny.

But

the

City

has

gone

beyond

signage

regulation. 9

9

Indeed, if the City is concerned about murals that incite public
disorder, the City has other well-known police powers to address
that.
Although the Court appreciates that a permit requirement for
murals may allow a municipality to keep track of what is and is
not graffiti, which in turn, could advance a governmental interest
in aesthetics, the summary judgment record seriously casts doubt
on the legitimacy of the City’s interest in keeping track of
graffiti. Notably, the City has readily admitted, fatal selective
enforcement, including under oath, that it takes no proactive
action against unpermitted murals and only responds to complaints.
As the City’s Department of Safety and Permits Director, Jared
Munster, attests in his affidavit: “In the vast majority of
violation cases, mural or otherwise, the Department of Safety and
Permits is a responsive agency rather than proactive.” Jennifer
Cecil, the purported director of the City’s “One Stop for Permits
and Licenses,” similarly testified during her deposition that the
City takes no enforcement action until it receives a complaint:
24

III.
Morris also seeks summary relief in his favor that the muralspermit scheme is impermissibly vague in violation of the Due
Process Clause of the Fourteenth Amendment.

In particular, he

requests a declaration that the definition of “mural,” located in
CZO § 26.6, is void for vagueness.

The City responds that the

challenged text is sufficiently clear to give people of ordinary
intelligence fair notice of what constitutes a mural.
The Fourteenth Amendment provides that “[n]o person shall
. . . be

deprived

of

life,

liberty,

or

process of law.” U.S. Const. amend. XIV.
an

outgrowth

Williams, 553

of

the

U.S.

Due
285,

Process
304

property

due

“Vagueness doctrine is

Clause.”

(2008).

without

United

States

v.

The Supreme Court has

Q: You are saying you are aware of murals that don’t
have permits for which no enforcement action has been
taken?
A: Yes.
Q: Okay.
A: Those murals have not been the subject of complaints
or inquiries.
Q: Okay. So if you are aware of murals that do not have
permits but no one has complained, you take no
enforcement action?
A: I would say, yes, that is correct.
In light of the City’s admission that it only enforces the permit
requirement against murals about which it receives complaints, it
is questionable as to whether the murals-permit scheme promotes
aesthetics in any meaningful way.
25

consistently held that “[i]t is a basic principle of due process
that an enactment is void for vagueness if its prohibitions are
not clearly defined.”

City of Mesquite v. Aladdin’s Castle, 455

U.S. 283, 289-90 (1982) (citing Grayned v. City of Rockford, 408
U.S. 104, 108 (1972)); see also Johnson v. United States, 135 S.
Ct. 2551, 2557-58 (2015); Kolender v. Lawson, 461 U.S. 352, 357
(1983); Munn v. City of Ocean Springs, Miss., 763 F.3d 437, 439
(5th Cir. 2014) (“The Due Process Clause requires that a law
provide

sufficient

intelligence

would

guidance

such

understand

that
what

a

man

conduct

of
is

ordinary
being

prohibited.”). 10
Morris challenges as impermissibly vague two components of
the definition of “mural:” (1) “work of art,” and (2) “exterior
surface.”

Morris first submits that, because the CZO does not

define “work of art,” permit applicants are required to determine
for themselves whether paint applied to an exterior surface is
“art.”

Pointing to the deposition testimony of Jennifer Cecil,

10

The Supreme Court has also suggested that a law violates due
process where its standards are “too vague to support the denial
of an application for a license.” See City of Mesquite, 455 U.S.
at 293 (“We may assume that the definition of ‘connections with
criminal elements’ in the city’s ordinance is so vague that a
defendant could not be convicted of the offense of having such a
connection; we may even assume, without deciding, that such a
standard is also too vague to support the denial of an application
for a license to operate an amusement center.”).
26

Director of the New Orleans One Stop for Permits and Licenses,
Morris notes that Ms. Cecil herself could not even define the term:
A: . . . the presentation of a permit request for a mural
is an assertion that this is a work of art . . . .
Q: So you are saying that the applicant, by the mere
fact of asking for a mural permit, is presuming that the
subject is a work of art?
A: That’s my understanding of how it’s approached, yes.
. . .
Q: So that’s what I am sort of getting at. I am trying
to understand where the line is drawn.
A: If you tell me that it’s not a work of art when you
come in, that you are just painting solid -- that you
are painting a house, there will be no permit required
if you are not in a historic district.
Q: So if I don’t think it’s a work of art, I don’t need
a permit?
A: If you don’t think it is a work of art and you are
describing solid color painting to us, we would not tell
you that, no.
If you begin describing figurative
painting or painting of words, we would suggest that you
have it reviewed and you present an example of what that
would look like.
Tellingly, the City fails to respond to the plaintiff’s
arguments in this regard.

In so doing, the City apparently

concedes that the CZO’s failure to define “work of art” renders
the definition of “mural” impermissibly vague. 11

11

Of course, if the City were to attempt to define “work of art,”
this would unquestionably give rise to additional content-based
distinctions. It appears the City has no choice but to step back
and craft a broad, content neutral definition of sign that does
not refer to “art,” “commercial speech,” or “non-commercial
speech.” And if the City wishes to treat murals differently than
signs, it could perhaps create subcategories based on physical
27

Morris also correctly contends that the meaning of “painted
or otherwise applied to or affixed to an exterior surface” is vague
and unclear.

For instance, he questions whether an “exterior

surface” includes a roof that is not visible to passerby, or a
wall of a penthouse atop a skyscraper.

(Or, if maybe one wishes

to use two colors to paint an “exterior surface,” he will have
created a mural.)

He also queries whether the mural permit

requirement only applies to particular types of structure.

To

demonstrate that the meaning of “exterior surface” is open to
interpretation, Morris again spotlights Ms. Cecil’s deposition
testimony:
Q: . . . I want to paint a mural on the wall of [my]
courtyard. It’s an exterior wall, but it’s not public
facing.
. . .
A: . . . I believe as it is written, you should [obtain
a mural permit], but we may never come to know that such
a painting exists without having reason to visit the
interior courtyard space you have hypothetically
referred to.
Q: Right. So the question is really more specific.
that wall considered an exterior wall?

Is

characteristics alone, such as “wall sign” or “painted wall sign.”
Compare Central Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d
625, 628-29 (4th Cir. 2016) (holding that sign ordinance exempting
from regulation “works of art which in no way identify or
specifically relate to a product or service” was a “content-based
regulation that d[id] not survive strict scrutiny”) with Peterson
v. Vill. of Downers Grove, 150 F. Supp. 3d 910, 919-23 (N.D. Ill.
2015) (holding that sign ordinance’s ban on all painted wall signs
was content neutral and “narrowly tailored to serve the Village’s
interest in aesthetics.”).
28

A: Would you mind if I looked at the definition again?
Because the CZO’s use of the indistinct, shapeless, and
obscure phrases “work of art” and “exterior surface” fails to
provide “sufficient guidance such that a [person] of ordinary
intelligence would understand” when a mural permit is required,
Morris is entitled to summary judgment that the definition of
“mural” is unconstitutionally vague under the Due Process Clause
of the Fourteenth Amendment.

See Munn, 763 F.3d at 439.
IV.

Having determined that the murals-permit scheme is facially
unconstitutional, the Court must consider whether to issue an
injunction against its enforcement.
“The legal standard for obtaining a permanent injunction
mirrors

the

injunction.”

legal

standard

for

obtaining

a

preliminary

Viet Anh Vo v. Gee, 301 F. Supp. 3d 661, 664 (E.D.

La. 2017) (citing Lionhart v. Foster, 100 F. Supp. 2d 383, 385386 (E.D. La. 1999)).

Thus, “[a] plaintiff must demonstrate ‘(1)

actual success on the merits; (2) a substantial threat that failure
to grant the injunction will result in irreparable injury; (3) the
threatened injury outweighs any damage that the injunction may
cause the opposing party; and (4) the injunction will not disserve
the public interest.’” Id. (quoting Causeway Med. Suite v. Foster,
43 F. Supp. 2d 604, 610 (E.D. La. 1999)).
between

the

legal

standards

for
29

The notable distinction

preliminary

and

permanent

injunctive relief is that the plaintiff must demonstrate actual
success

on

the

merits,

rather

than

a

likelihood

of

success.

Id. (citing Lionhart, 100 F. Supp. 2d at 386).
After

considering

the

factors

governing

issuance

of

injunctive relief, the Court finds that an injunction is warranted.
As for the danger of not granting injunctive relief, the Fifth
Circuit has consistently held that the loss of First Amendment
freedoms constitutes irreparable injury.

See Palmer v. Waxahachie

Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (internal
citations omitted).
City’s
messages

irresolute
that

injunction

interest

may

will

Balanced against this grave threat is the

be

not

in

identifying

masquerading
disserve

the

as

those

murals.

public

commercial
Finally,

interest

an

because

“injunctions protecting First Amendment freedoms are always in the
public interest.”

Texans for Free Enter. v. Tex. Ethics Comm’n,

732 F.3d 535, 539 (5th Cir. 2013) (internal citations omitted).
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the plaintiff’s motion for summary judgment is hereby GRANTED.
IS

FURTHER

ORDERED:

that

New

Orleans

Comprehensive

IT

Zoning

Ordinance § 21.6.V is hereby declared facially unconstitutional
and that the City of New Orleans is enjoined from enforcing §
21.6.V.

30

New Orleans, Louisiana, July 9, 2019

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

31