In Englewood, Bureaucrats Try to Define Art, Free Speech

It's been more than three months since Mike Mahaney had to worry about graffiti scarring the sides of his shop on South Broadway.
The taggers stopped painting Mahaney's Headed West store in April. They stopped because he hired some artists to paint a mural of Alice in Wonderland on one side of the store. Paintings of Jerry Garcia, Bob Marley, Jim Morrison and Janis Joplin cover another side.

In a metro area like Denver, where graffiti is not only an eyesore but a predictor of gang activity, substituting art for vandalism might seem like a good thing. Yet Englewood officials are prosecuting Mahaney for doing just that.

"I'll plead not guilty," Mahaney said of his scheduled August 22 appearance for what the city claims are sign code violations.
The American Civil Liberties Union says Englewood concocted the code violations because it didn't like the content of the murals on Mahaney's store. Mahaney said one neighboring business complained of a drug theme in the Alice in Wonderland mural.

Anyone old enough to remember the psychedelic rock band Jefferson Airplane and it's signature tune "Go Ask Alice" knows there's probably some substance to the charge. But the alternative of graffiti, possibly even gang-related graffiti, calls the city's judgment into serious question.

Mahaney's shop sells pipes and papers and other things that could be adapted into drug paraphernalia. A sign on the wall in the shop extols the recent legalized marijuana initiative that passed in Denver.

However it looks, Mahaney's 11-year-old business is legal. Unaccompanied minors are not allowed into the store, which also sells knives and posters and all kinds of countercultural kitsch. Mahaney's been doing business in Englewood for four years, 14 months at his current location. The city has not suggested that what he sells is against the law, because it isn't.

"You have to play by the rules," he said.

The rule in this case is the First Amendment. Englewood has no constitutional right to censor a wall painting of a fairy tale.

City officials say they didn't do that. Rather, they claim Mahaney didn't get the necessary permit to paint a "sign." When wall murals became signs in Englewood is not clear. But the bureaucrats went one step farther and proclaimed Mahaney's "sign" too big. The city first wrote one of Mahaney's employees tickets for those code violations, then dropped the charges and re-filed against Mahaney.

It was an awful lot of effort, and it caught the eye of the ACLU. "They're making aesthetic judgments," said Mark Silverstein, the legal director for the Colorado chapter of the ACLU. "This is artistic expression protected by the First Amendment."

The Englewood code draws distinctions between signs and works of art, said ACLU cooperating attorney Tom Macdonald, who represents Mahaney.

"Their own definition of art includes murals," Macdonald pointed out.

That's critical, because in Englewood, you don't need sign permits for works of art.

The battle lines are joined. The Englewood city attorney's office would say only that it has been served with the ACLU's law suit and is preparing an official response.

It might save the city some embarrassment if it can delay a decision on Mahaney's tickets while a judge decides the larger constitutional question.

Mahaney says he's collected "at least 1,500" signatures on a petition condemning the city's actions.

"I even got a letter from an 83-year-old woman who lives down the street who said she enjoyed the mural," Mahaney said.
Maybe the old woman sees what the city can't:

Whatever the courts call it, a mural of a girl, a white rabbit and what the Jefferson Airplane once called "a hookah-smoking character" will never threaten Englewood's welfare as much as gang symbols spray-painted on the same walls.

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Jim Spencer

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