If I said I was going to visit the “Mural Capital of the World,” would you know where I was going? And if I then told you that this same city had banned the painting of outdoor murals for the last 11 years, would you think I intended the title sarcastically?

I don’t, but given the city’s struggle in its attempts to regulate murals, perhaps I should. For many decades, Los Angeles was known as the mural capital of the world because of the high-quality murals decorating the cityscape–and due to its lack of mural regulation. But in 1986, in efforts to control signage in the city, LA adopted a Comprehensive Sign Code. The law included a 3 percent text limitation within its language, with the intention of distinguishing art from advertising and protecting the city’s murals. But this had the adverse effect of restricting murals which incorporated “graffiti art” amounting to more than 3 percent text. It also meant that in theory, advertising without text could be categorized as a mural.

Thus, in 2002, a court struck down the exemption for fine art murals in the city’s Comprehensive Sign Code on First Amendment grounds. The court held that the city was privileging one type of protected speech over another because muralists were allowed to create large displays (considered art) that commercial enterprises were restricted from doing (because it wasn’t). The ordinance resulting from this court decision therefore included a general ban on outdoor advertising on private property, a ban which included murals (with three limited exceptions) within its broad scope. (Further, the ban did not reach public property, and existing murals were grandfathered in.) Because the city could not meaningfully distinguish murals from advertising, this general ban was the city’s attempt to control outdoor advertising and curb the efforts of sign companies to categorize commercial advertising as art murals. Despite a First Amendment challenge to this ordinance, in 2010 the Ninth Circuit upheld the ordinance because of the city’s substantial interests in aesthetics and safety.

However, in 2011, efforts began to establish a new ordinance regulating murals separately from the general ban, partly in an attempt to reclaim the city’s status as the “Mural Capital of the World,” and partly because the ordinance has been applied inconsistently. Some murals have been found in violation of the ban while others seem to have received implicit approval. The passage of the new Mural Ordinance in August of this year is the culminating result–but it is arguably not without its own share of Constitutional concerns.

The new ordinance requires that a new mural be registered with the city, that a fee be paid, and the artist must wait 45 days so that those in the surrounding neighborhood have time to voice any objections, even though the ordinance specifies that no artist will be forced to alter the mural’s content based on such an objection. However, this doesn’t mean that private citizens will be forced to live with just any mural created in their neighborhood, however objectionable it might be, as the regulation essentially provides that murals cannot be created on single-family homes.

Does this final restriction on murals on single-family homes create merely another First Amendment problem? Earlier this summer, singer Chris Brown became the subject of controversy due to the images of monsters adorning the walls of his Los Angeles home. He claimed his paintings were protected under the First Amendment, but after receiving a citation under the old ordinance, he ultimately acquiesced and painted over the monsters. Under the new ordinance, he doesn’t receive any greater protection.

Does the new ordinance in some way also present a Fifth Amendment problem, as a “taking” of private property? And is either problem alleviated with a proposal that allows a neighborhood district to “opt-in,” thus allowing for murals on single-family homes in that district?

–Avery VanPelt

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