- Associated Press - Friday, December 25, 2015

BEND, Ore. (AP) - People who are hoping to bring more murals to Bend have hit a bump in the road: the Oregon Constitution.

The Bulletin reports (https://is.gd/4G6JyR) a quirk in the state constitution makes it impossible for cities to distinguish between displays of personal expression and commercial advertisements.

As a result, any city hoping to encourage a 20-foot-tall outdoor painting of an elk might also find itself with a 20-foot-tall display advertising the services of a personal injury lawyer.

The city of Bend is now trying to find a way to allow more murals without encouraging oversized ads. The desire is spurred in part by a movement to bring an annual mural festival to the city.

Assistant City Attorney Gary Firestone said the issue with murals derives from how the state constitution treats free speech.

Under federal law, commercial speech is protected, but it gets less protection than political or noncommercial speech, Firestone said.

“Oregon Constitution’s protection of free speech is worded slightly different, and, as a result of that difference, the Oregon courts have interpreted it so that you cannot distinguish speech by its content, which means commercial speech is treated the same as political speech,” he said.

As a result, if Bend allows large murals, it has to allow anything that is similar regardless of content.

Firestone said the city of Portland was able to find a workaround by encouraging murals through a city-run program, which allowed artists to operate outside of the city’s sign code.

Another approach is to loosen up a city’s code in select areas, thereby allowing murals while also running the risk of greenlighting a giant advertisement.

In Bend, the biggest impediment to aspiring muralists is a restriction on the size of a sign. Some murals in town predate the sign rules, Firestone said, meaning they’re legal. Other public displays of art, however, “may operate in a legal gray zone,” Firestone said, noting the city’s enforcement is complaint-driven.

Matt Schiffman, who chairs the city’s Arts, Beautification and Culture Commission, is working with the city to find a solution that would work for Bend.

“I think the best-case scenario would be to create a program similar to Portland’s, that allows the city to work with private, outside entities to create murals,” Schiffman said. “It would be very similar to how the roundabout art works in Bend, where you have a private group doing the funding but working with the city to make the process smooth.”

The Oregon Constitution hasn’t been a challenge for Vale, a small community near the Idaho border. Along the city’s main drag, buildings are decorated with large murals depicting the Oregon Trail, which passed through the town.

Frank Yraguen, who helps run Vale’s mural program, said he wasn’t aware of any issues connecting free speech to the paintings.

“Quite frankly, this is news to me,” he said. “And I guess I should know these things. I’m a lawyer and a judge.”


Information from: The Bulletin, https://www.bendbulletin.com

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