CONCORD, N.H. – A New Hampshire town’s attempt to force a bakery to remove or alter its painting that shows sunbeams shining down on a mountain range of doughnuts, a muffin, a cinnamon roll and other pastries is unconstitutional, a judge ruled in a First Amendment dispute.
The town of Conway infringed on the free speech rights of bakery owner Sean Young, U.S. District Judge Joseph Laplante ruled Monday, following a one-day trial in February.
He ordered the town to stop any efforts at enforcing its sign code regarding the mural painted by high school students atop Leavitt’s Country Bakery, mentioning a “complete disconnect between what the ordinance purports to regulate and the town’s enforcement, as well as the illogical way it applied and explained that enforcement” to Leavitt’s.
“I’m thrilled that the students’ artwork can remain up, I’m thrilled that my First Amendment rights have been vindicated, and I’m thrilled that the community can continue to enjoy the beautiful piece of art,” Young said in a statement. “I think our mural is a wonderful depiction of everything that makes the Mount Washington Valley such a great place to live.”
Young asked for $1 in damages. A lawyer representing Conway said they were disappointed by the outcome, but agreed with Laplante that the town and its officials “conducted themselves conscientiously and in good faith in managing town business.”
The community of more than 10,000 people in the White Mountains draws skiers, nature lovers and shoppers. Some residents want regulations enforced as they worry about overdevelopment in the tourist town.
When the mural went up in June 2022, it attracted a lot of compliments and visitors, including one from a town zoning officer.
The zoning board decided that the painting was not so much art as advertising. The board determined it was a sign, and so it could not remain as is because of its size. At about 90 square feet (8.4 square meters), it’s four times bigger than the local sign code allows.
If the painting didn’t show what’s sold inside — baked goods — it wouldn’t be considered a sign and could stay, board members said.
Gay Moceri, a former English teacher living in nearby Freedom, New Hampshire, said the town’s efforts to remove the sign were sending a “horrible” message to students “who had worked hard to do something so beautiful to contribute to the community.”
”I’ve had a grin on my face ever since I got the news because you stick to your guns and you fight for what you know is right, and sometimes the little guy does win,” she said. “I’m happy for him, and I’m happy for the community that we get to keep this beautiful piece of art.”
James Lewkowicz, who stopped by the donut shop with his golden retriever Tehya to offer congratulations Tuesday, called the town’s approach to the situation “illogical.”
“We’re really happy — at least I am,” said Lewkowicz, who has a house in Jackson and has been spending time in the area for 40 years. “I thought the town was mean. It’s little kids’ paintings. I just hope the kids who painted it are still around to come back and have a donut party.”
The town has shown that “restricting the size of signs serves the significant government interest of preserving the town’s aesthetics, promoting safety, and ensuring equal enforcement,” lawyers for Conway said in a court document.
Laplante said Conway’s interests “are undermined if the only regulated displays are those that depict products or services sold on the premises where the display is, and no others.”
Young sued in 2023 after he was told to modify or remove the painting, which he said was never intended to be a sign. He was faced with possible misdemeanor criminal charges and fines after his appeals were rejected.
Both sides agreed in court that the town’s definition of a sign is very broad. Even the judge said it seemed to include “everything.”
A sign in Conway is “any device, fixture, placard, structure or attachment thereto that uses color, form, graphic, illumination, symbol, or writing to advertise, announce the purpose of, or identify the purpose of any person or entity, or to communicate information of any kind to the public, whether commercial or noncommercial.”
The town “will continue to work conscientiously and in good faith to ensure that the constitutional rights of all are not infringed, while maintaining public safety and Conway’s natural beauty,” Brooke Lovett Shilo, one of the lawyers representing Conway, said in a statement Monday.
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