Englewood Sign Code Regulating Wall Murals Held Unconstitutional

The Colorado Court of Appeals recently held that the City of Englewood's sign code regulating wall murals was an unconstitutional prior restrain on protected free speech. Mahoney v. City of Englewood, Case No. 08CA1505 (Colo. App, Oct. 1, 2009). Prior restraint in this context means regulation of protected speech prior to the time such speech is to occur.

The case involved murals painted on a building located in Englewood's "South Broadway Sign Area." In that area, murals are permitted under Englewood's sign code, but are subject to prior approval by the city manager. See, EMC sec. 16-6-13.K. The approval process is where the Court of Appeals found fault.

Englewood's sign code had no specific approval period for the city manager's final decision on an application for a mural permit. The Court of Appeals concluded that the lack of a definite time period created a risk of indefinitely suppressing permissible speech. It then held that, to pass constitution scrutiny, the "review procedure must require the city manager to decide whether to issue a permit within a brief, specified time period ... and there must be the possibility of prompt judicial review in the event the permit is erroneously denied."

Posted By: Brent W. Houston, Esq.