Kansas city asks 10th Circuit to save sign regulation after cheeseburger challenge

The owner of the 100-year-old Cozy Inn burger joint in Salina, Kansas, sued the city to block enforcement of an ordinance attempting to regulate a UFO cheeseburger-themed mural designed by local artist Colin Benson.DENVER (CN) — The 10th Circuit picked apart the art of the cheeseburger on Wednesday — or, rather, when cheeseburger art becomes advertising that can be regulated by local government.U.S. Circuit Judge Scott Matheson summed up the debate with a single question.“Is it a sign or is it a mural?” the Barack Obama appointee asked.In November 2023, Stephen Howard, owner of the Cozy Inn burger joint in Salina, Kansas, hired local artist Colin Benson to paint large cheeseburger-shaped UFOs on the side of the business, accompanied by text telling passersby not to fear the onion aroma and inviting them inside.The image and lettering, according to city officials, violated local sign ordinances, prompting them to issue a cease-and-desist order barring completion of the mural.Citing his First Amendment rights, Howard sued on Feb. 19, 2024. Donald Trump-appointed U.S. District Judge Toby Crouse denied the city’s request for summary judgment on Nov. 19, 2025, allowing the painting to be completed.Salina appealed, defending its regulations as narrowly tailored to serve a government interest.On behalf of the city, attorney Todd Messenger argued the sign regulations protect local aesthetic values and promote safety.In asking whether the painting conveyed a commercial message or art, Matheson picked at whether the government had an interest in preventing such a mural from being displayed.“If it’s a sign and it’s too big, what do we do with prior restraint?” Matheson asked. “If the letters are too big, then there isn’t a whole lot of discretion there.”On behalf of Howard and the Cozy Inn, attorney Samuel MacRoberts argued the mural’s category was irrelevant because allowing the government to regulate either gave the city too much power.“It’s a sign just like every sign painted on the wall is a mural,” said MacRoberts, who practices with the Kansas Justice Institute. “We hope you will say it’s unconstitutional prior restraint because it gives the government unbridled authority.”In response to the city’s characterization of commercial speech being used to sell a product, MacRoberts mused in the reply brief that the city’s rules meant Howard could only display Andy Warhol’s soup cans on his building if he didn’t sell Campbell’s soup and that a taco shop could only feature a dove if it did not sell “dove tacos” — or doves in general.In an amicus brief, the nonprofit Goldwater Institute and the Manhattan Institute created two mock-ups of similar murals: one with pizza-shaped UFOs that might allow the burger restaurant to pass muster under the zoning regulations, and the challenged cheeseburger painting.Attorneys representing the Goldwater Institute and the Manhattan institute submitted this artistic rendering to demonstrate the strange line Salina rulemakers drew between advertising, above, and art, below. (Courthouse News via court documents)U.S. District Judge David Urias, visiting from the U.S. District Court for the District of New Mexico, rounded out the panel alongside U.S. Circuit Judge Gregory Phillips. Joe Biden appointed Urias to the bench, and Obama appointed Phillips. The court did not indicate when or how it would decide the case.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads