19-05-2025
Judge rules town's attempts to force bakery to take down pastry mural 'unconstitutional'
A federal judge ruled Monday that the town of Conway's attempt to force a local bakery to take down a mural of doughnut mountains painted by high school art students was 'unconstitutional,' and he ordered local officials to stop any efforts at enforcement.
Monday's ruling followed a one-day trial on Feb. 14, during which Judge Joseph Laplante heard testimony from Leavitt's Country Bakery owner Sean Young, along with several town zoning officials regarding the town's enforcement of its sign code against Leavitt's.
'Conway's enforcement is unconstitutional as applied to the plaintiffs' display,' Judge Laplante wrote in his ruling. 'Conway is enjoined from enforcing its ordinance against Leavitt's bakery in the operationally illogical, textually unsupportable manner it employed in this instance.'
'I'm thrilled that the students' artwork can remain up. I'm thrilled that my First Amendment rights have been vindicated, and I'm thrilled that the community can continue to enjoy the beautiful piece of art,' Young said. 'I think our mural is a wonderful depiction of everything that makes the Mount Washington Valley such a great place to live.'
Young was represented by attorney Cooper Cargill. He also worked with attorneys with the Virginia-based Institute for Justice.
The mural vs. sign debate was first raised in 2022 after a group of art students at Kennett High School painted the front of the store with bright colors depicting items sold within the bakery, such as muffins and doughnuts that were imagined as views of the White Mountains and the Mount Washington Valley.
Leavitt's was found to be in violation of the town's maximum sign size regulations. According to town officials, the mural was an illegal sign because it depicted something Leavitt's sells: baked goods. But if it had depicted real mountains instead, no violation would have occurred, officials said.
Young tried to apply for a variance to keep the mural up. When he did so in September 2022, he had the backing of Conway residents with more than 1,000 people commenting positively on Leavitt's Facebook page, and letters to the editor published in the Conway Daily Sun arguing that the mural should stay.
The Conway Zoning Board of Adjustment (ZBA) voted unanimously against granting the bakery a variance, and doubled down on that decision in Nov. 2022, again denying the variance.
Voters have since decided at Town Meeting to adopt a public art ordinance to regulate 'the installation of murals and also permits other art visible to the public on commercial and public property such as sculptures, street art, or other types of permanent artwork.'
The Institute for Justice heard about Young's fight and sent Conway a letter in December 2022 urging officials to back off and to work with the institute to reform the town's unconstitutional sign code. When the town refused, Young and institute attorneys filed a federal lawsuit to protect his First Amendment rights.
The mural has remained up while the suit was pending after a judge granted a temporary restraining order.
'Towns can certainly regulate signs. They can regulate the size of signs or the number of signs permitted, but what they can't do is pick and choose what signs to regulate based on what they depict,' institute attorney Betsy Sanz said in a statement. 'Today's ruling makes it clear that what Conway was doing was discriminating against certain signs based on what officials thought they depicted. And that's a clear First Amendment violation.'
In the ruling, Judge Laplante wrote that, though the town said it had to regulate the Leavitt's mural to maintain safety and protect the natural beauty of the town, the town allows other murals to stay up unregulated.
As Laplante wrote, the town's enforcement has 'no rational connection to any of its stated interests' such as safety and beauty and is therefore unconstitutional.
An attempt to reach Conway officials for comment Monday was unsuccessful.
