Town warrant may decide whether Conway bakery has a mural or an advertising sign

Feb. 16—The fate of the pastry mural atop Leavitt's Country Bakery in Conway — which hinges on constitutional rights to free speech, the town's sign ordinances and what exactly constitutes advertising — will move a step closer to being decided April 11, when voters at Town Meeting will be asked to approve a warrant article that defines signs to include artwork and murals whose main purpose is advertising.

The ongoing debate over whether the mural, an art project by local high school students, must go or stay has become a legal cause celebre, attracting online followers nationwide and the attention of First Amendment defenders.

Sean Young, owner of the popular pastry and donut shop on Route 16, a Mount Washington Valley mainstay for roughly 45 years, said Tuesday that he'll take the fight if necessary to the U.S. Supreme Court.

But the reason for his lawsuit could disappear, depending on whether the new definition is approved by voters, and whether it is believed to apply to Leavitt's.

"It's still up in the air until April," Young said. "We're going to help get that passed. If they still say we have to take it down, they're trying to restrict content," which becomes a freedom of speech infringement, he said.

The exact wording of the warrant article hasn't been finalized, the town's attorney, Jason Dennis, said by email. It may be refined in a deliberative session or promoted as is.

The proposed petition defines a sign as any device, fixture, placard, mural, painting, work of art, structure or attachment clearly visible and readable from a public road that uses color, form, graphic, illumination, symbol, or writing and whose primary purpose is to advertise, announce the purpose of, or identify a business or commercial entity, enterprise or product. The addition of primary purpose is the substantive change to what's now on the books.

"If it passes, how they interpret and apply it is the definitive issue," said Betsy Sanz, a litigation fellow with the Institute for Justice, which is defending Young's right to keep the mural. "We'll have to see what position they take when they grapple with the definition and think it through. It's always been the case that high school kids designed and painted this mural" — it was not a commissioned advertisement.

The attorney for the town, Jason Dennis of Hastings Law in Fryeburg, Maine, said at a town Planning Board meeting Jan. 26 that he believes Leavitt's will be exempt from the proposed definition because it can be argued that that the mural's primary purpose was a high school art project. It would be different if Leavitt's asked the high school art class to come up with the mural for his business.

The art class approached Young with the project independently, and the mural's content wasn't known to him until it was unveiled, Young said.

"If the article passes, it could resolve the pending case," Dennis said by email.

Because the town hasn't proceeded with enforcement yet, and has agreed not to take action until the case is resolved, what happens to Leavitt's is not automatically guided by the sign ordinances that are now in place — unless the proposed article is voted down.

Young said he has a lot of support in town and beyond. Some town officials who are sympathetic have stopped by the bakery to offer their advice. So far, town officials have been split in their opinions, and it's too early to predict what will happen at Town Meeting in April. A final vote recount will occur by April 18.

If the article passes, said Sanz, the town's definition of a sign — which prompted the lawsuit against the Town of Conway — will no longer exist.

"At that point the ball will be in the Town's court," Sanz stated by email. Town officials will have to determine whether the current Leavitt's painting remains a sign under the new definition and is subject to size restrictions. "They will also have to determine if future murals designed and painted by local high schoolers would likewise be 'signs' if displayed on the Leavitt's façade." If the town decides that such paintings would not be signs, then then the matter would likely be resolved, Sanz said.

If the warrant article fails and the town's position remains unchanged, the Institute for Justice will ask the court to permanently stop the town from enforcing its sign code against Young and the bakery.

"The Leavitt's mural is art protected by the First Amendment, which is true whether or not it depicts items that are sold within the Leavitt's building," Sanz said. She hopes the town will "recalibrate its understanding of freedom of speech," cease actions against Young, and allow the townspeople to enjoy a "charming" mural.

"Otherwise, Sean and the Institute for Justice are ready to proceed with litigation in federal court," Sanz said.