Is a Doughnut Mural Art Protected Under the First Amendment?

​What is art?
 
Is D.H. Lawrence’s 1928 novel, Lady Chatterley’s Lover, art? The U.S. Post Office didn’t think so, restricting uncensored versions of it until 1959. Are Jackson Pollock’s messy canvases art, or splattered paint? What about Police Academy 5?
 
Britannica defines art succinctly as “a visual object or experience consciously created through an expression of skill or imagination.” This is an appropriately broad definition, one that leads to the logical conclusion that any restriction on art would be a restriction on speech, forbidden by the First Amendment.
 
Acclaimed art historian and BBC star Sister Wendy Beckett reminds us that as patrons, we are co-creators of the art we view. Sister Beckett said that we should “advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.”
 
Which brings us to the pastry and mountain mural painted by high school students in Conway, New Hampshire, above Leavitt’s Country Bakery. It will never be mistaken for Michelangelo’s Sistine Chapel, or even the wall art of your average Italian restaurant in Hackensack, New Jersey. But the mural’s assortment of doughnuts, muffins, and scones in front of a rising sun do a passable job of imitating the contours of the nearby White Mountains.
 
The rub is that the citizens of that town overwhelmingly voted to restrict the size of billboards and signs. Leavitt Country Bakery’s mural is four times larger than the municipal ordinance allows, though we note that it inoffensively fits snugly within the boundaries of that establishment’s roof.
 
When the city ordered Sean Young, the bakery’s owner, to take down the mural, he took them to court for violating his First Amendment rights. Will the city’s attorneys be able to poke holes in his argument? Sprinkle it with doubt? Or will the judge’s eyes glaze over and lead to an outright rejection of Young’s claim?
 
A suggestion: Perhaps the citizens of Conway should set up a fund to fly Sister Wendy Beckett to New Hampshire and let her decide which side she would support as an expert witness. And give her a free doughnut.

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