A U.S. District Court judge has upheld Arlington county’s right to force the covering or removal of a mural of smiling, playful cartoon dogs. Judge Leonie M. Brinkema ruled that the 960 square-foot mural outside of Wag More Dogs, a dog day care and grooming service in Shirlington, was a form of advertisement and commercial speech. As such, it violated Arlington’s sign ordinance. Kim Houghton, owner of Wag More Dogs, had argued that the county’s decision to force her to cover up or remove the mural was a violation of her First Amendment rights to freedom of speech, and that Arlington was basing its decision on the content of the mural.
Houghton said she commissioned the mural, which was painted before she opened her business, as a way of giving back to the community by beautifying a dog park nearby her store.
“I’m shocked and disappointed,” Houghton said. “And I’m saddened for the park users who want to see the mural. I shouldn’t have to cover this mural with a tarp that makes it look like my business is closed.”
Houghton has covered the mural with blue tarps since Arlington officials told her it was a sign, and violated county law. The problem, according to county officials, was that the mural, which depicts running cartoon dogs, paw prints, and doggie bones, was in fact a sign promoting her business. Had the mural depicted something else – flowers, dragons or ponies, for example – the mural would be left alone.
In her 33-page decision, Brinkema wrote that the county’s objection to the mural as a sign was clearly based on size – Arlington’s sign ordinance doesn’t allow signs larger than 60 square feet in size – and that in arguing the decision was based on content, “Wag More Dogs is barking up the wrong tree,” she wrote.
“We were pleased that the judge agreed with Arlington that this issue was about advertising, and that she found the county’s sign ordinance to be fair and reasonable,” said Assistant County Attorney Carol McCoskrie.
Robert Frommer, a staff lawyer with the Arlington-based Institute for Justice that represents Houghton, said they would appeal the decision.
“Arlington County’s sign law unconstitutionally allows government officials to play art critic,” Frommer said. “Today’s opinion again shows how important it is to have an engaged judiciary that will uphold American’s constitutional rights by closely scrutinizing abuses of government power.”
