• Rothfelder on “Art vs. Sign”

    By now, most of us have read in Billboard Insider and other publications about the US Supreme Court’s 2015 decision in Reed vs Town of Gilbert, basically holding that regulatory distinctions based on the content of messages displayed on signs violate the First Amendment. But, what about the more fundamental question of whether the structure is a “sign”, or rather “art” and not subject to sign ordinances and bureaucratic interpretations in the first place? This novel issue was adjudicated in the administrative court in Houston in the case of Billy Blues Restaurant and its “Smoke Sax.”



    Billy Blues was a restaurant and bar in Houston’s nightlife district serving barbecue and featuring live music, especially R & B. Renowned Austin artist Bob “Daddy-O” Wade created and built on site the “Smoke Sax,” a sculpture fabricated from a canoe, cattle troughs, a beer keg, a Volkswagen, and other spare parts. While embraced by the local art community, the Sax was targeted by the Houston Sign Administration as being in violation of the Houston Sign Code. In particular, the City alleged the Sax met the broad definition of a “sign” under its Code, which included “any outdoor display, design, pictorial or other representation which shall be so constructed, placed, attached, painted, erected, fastened or manufactured in any manner whatsoever that the same shall be used for advertising.” And, as a regulated sign, the Sax was therefore hopelessly in violation of the height, size, and location restrictions imposed on signs under the Houston Sign Code. As such, the City ordered Billy Blues to remove the Sax, or face criminal and monetary penalties.

    Billy Blues faced the music, and appealed the City’s decision to administrative court, where it argued that the Sax contained no advertisement–no printed words, arrows, nor anything that mentions or directs attention to Billy Blues. Further, Billy Blues didn’t use the Smoke Sax, a saxophone, nor any other musical instrument as a trademark or logo. In short, the Sax couldn’t be a “sign” because it wasn’t used for “advertising,” as those terms were used in the Houston Sign Code.

    Beyond technical interpretations, Billy Blues prevailed upon the common sense of the administrative court—that the Houston City Council never intended its Sign Code to apply to pieces of art such as the Smoke Sax. Like many urban centers, Houston enjoys and proudly displays numerous public art sculptures throughout the City. And, like Bob Wade, the creators of these local civil pieces are artists, not sign painters. Houston’s art community agreed and joined the chorus, sending hundreds of letters of support for the Sax to the City and court.

    Presented with this evidence, the administrative court ruled unanimously in Billy Blues’ favor. In fact, public and media support of the Smoke Sax was so overwhelming that the City was basically looking for a graceful way to save face and withdrew its opposition by the time of the hearing. Thus, the Smoke Sax was officially deemed “art,” and not subject to the height or other sign code provisions. Although the case ended on a happy note, at least for Billy Blues and the Houston art community, it graphically demonstrates the emotional and expensive confrontation that often results when attempting to distinguish between art and signage. As the Supreme Court explained in Reed vs Gilbert, the same tension can occur and lead to First Amendment violations when distinguishing and regulating the content of messages displayed on signs.



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