Doughnut shop's art can stay -- for now

Roberta Baker, The New Hampshire Union Leader, Manchester
Updated ·3 min read

Feb. 3—CONWAY — For more than 45 years, Leavitt's Country Bakery has wowed pastry lovers enough to win a "Best Doughnuts in New Hampshire" award in 2022.

Now, the most tantalizing item on its menu may be the owner's lawsuit against the Town of Conway over the high school art mural that sits atop the store on Route 16 — a fantasy landscape of doughnut and muffin mountains at sunrise.

The legal issue in question: Is it a mural or a sign, as the Town of Conway maintains?

For now, the answer is in limbo, and the artwork stays up pending the results of litigation.

After a video conference Wednesday with U.S. District Court Judge Joseph Laplante, both parties reached a temporary agreement. Court documents filed Thursday in Concord stipulate that the town will not take any action against the bakery's owner, Sean Young, including fines or any criminal charges, and will not require the artwork to be altered, downsized or removed from the building until the court rules after hearing arguments from both sides. There is no indication of how long that will take.

Until then, "We're glad they agreed we don't have to take it down," said Young, who lives in Maine and also owns Premier Rental-Purchase in North Conway. If the judge's decision goes against Leavitt's Country Bakery, "We'll go to the state Supreme Court or the U.S. Supreme Court. Whatever we have to do."

Attorneys at the Institute for Justice, a legal nonprofit that defends the First Amendment rights of business owners, asked the court to intervene with a temporary restraining order to prevent the town from proceeding with any legal action against Young, including stiff fines for every day the artwork remains.

"We think we have a strong case," said Betsy Sanz, a litigation fellow with the Institute for Justice. Based on a U.S Supreme Court ruling in 2015, a requirement to remove the artwork because of its content, creator or implied speaker amounts to a violation of Constitutional rights that guarantee freedom of expression.

The town's "issue with the mural are the muffins and doughnuts. Because Leavitt's is doing something inside related to the mural, that's the problem," said Sanz.

A depiction of actual mountains, instead of fantasy depiction of baked good hills and peaks, would not have crossed the line from mural to sign, according a conversation Young said he had with Conway town officials. He said he was told if the artwork was over the farm stand next door that shares Leavitt's parking lot, it would not be a considered a sign because the farm stand doesn't sell pastries.

Ironically, the content of the mural by art students at Kennett High School, made as a class project, was a complete surprise until the day before it was finished, when Young said he got a 'sneak peek' at one corner. "We had no idea what they were painting. It was a surprise to us just like anyone else." The young artists had carte blanche.

Young said that recent publicity through social media, newspaper coverage and television broadcasts, as well as information shared with supporters of the Institute for Justice, has netted a groundswell of case watchers and sympathizers with Leavitt's Bakery — including from Austria, Denmark and across the U.S. He said Leavitt's Country Bakery's Facebook page has netted "hundreds and hundreds' of posts, most siding with the small Mt. Washington Valley business. "Almost all are in support of us," said Young.

Jason Dennis of Hastings Law Office in Fryeburg, Maine, an attorney representing the town of Conway in this case, did not respond to requests for comment on Friday.

Steve Lehto, an attorney who follows First Amendment cases by the Institute of Justice, in a video posted on YouTube, contested the town's classification of the art as a commercial sign. "What is the message of an image with no words? If it didn't display doughnuts or baked goods, it could stay up."