A historic burger restaurant in Kansas has won an important First Amendment victory after a federal appeals court ruled that city officials had no right to stop it from painting hamburger-shaped flying saucers on its outside wall. On 30 October 2026, a three-judge panel of the 10th US Circuit Court of Appeals ruled in favour of Steve Howard, owner of the Cozy Inn in Salina, Kansas. The ruling supported an earlier decision by a lower court, which found that the City of Salina had violated Howard’s constitutional rights by classifying his planned artwork as an illegal commercial sign. The dispute began in November 2023, when Howard hired local artist Colin Benson to paint a mural on the side of his building facing a public car park. The design showed UFOs shaped like hamburgers spraying ketchup and mustard. It also included the slogan, “Don’t Fear the Smell! The Fun Is Inside!!”. The painting work stopped suddenly after just six hours. City code enforcement officers told Benson to stop. Salina officials argued that the painting showed hamburgers and sauces sold inside the restaurant, making it an advertisement rather than public art. Under local rules, commercial signs have strict size limits, while non-commercial murals can be any size. Howard, with help from legal advocates at the Kansas Justice Institute, filed a federal lawsuit in February 2024 to protect his right to finish the artwork.
Federal panel rejects traffic safety arguments
The City of Salina defended its rules by saying that restrictions on commercial signs helped prevent driver distractions and protect pedestrians. However, the appeals court rejected these claims. It found that city officials had failed to show how a mural featuring hamburgers created a greater safety risk than a non-commercial painting that did not face the same restrictions. Writing the court’s opinion, US Circuit Judge Scott Matheson Jr said the city had not provided enough evidence to explain why commercial artwork should be treated differently from other forms of public expression. During the case, the city submitted a student law review article, traffic presentation statistics, and evidence from city planner Dustin Herrs. During a deposition, Herrs was asked whether the city had scientific evidence showing that painted wall signs were more dangerous to pedestrians than painted murals. He did not confirm that such evidence existed. Salina also presented expert evidence from Mark White, a lawyer with a master’s degree in regional planning. White referred to studies about how people respond to public art compared with commercial advertisements. However, Matheson noted in the court’s opinion that White did not explain why the restaurant’s planned artwork posed a greater threat to the city’s interests than other displays that were allowed.
Unlawful delay deemed a prior restraint
Along with rejecting the city’s different treatment of commercial and non-commercial speech, the 10th Circuit panel also supported a lower court’s finding that Salina had placed an unconstitutional restriction on free speech by failing to act on the permit application. After city officials stopped the artist from painting in 2023, Howard submitted an official sign permit application as instructed. However, city officials left the application waiting without making a final decision. “Given that Mr. Howard’s application has aged for three years without his consent, Salina imposed a prior restraint on his speech,” Matheson wrote in the panel’s opinion. US Circuit Judge Gregory Phillips and US District Judge David Urias also joined the opinion. The legal fight began after Salina launched a wider effort to improve the appearance of its downtown area. In 2022, the city started holding an annual autumn mural festival. The event inspired Howard to add public artwork to his own building. “I was inspired,” Howard said in an interview about how the project began. “I thought I was contributing to Salina downtown.”
Century of burger history in Salina
The Cozy Inn is a well-known part of downtown Salina and has been operating from the same small shop, with just six stools, since 1922. The restaurant is famous for its small slider-style burgers, which are cooked with onions. Its tiny 40-square-foot customer area serves an average of 1,300 burgers each day. The menu is kept simple. Customers can order burgers, crisps, and canned drinks. Cheese is not available as an option. Howard, who started working in restaurants as a teenager, bought the historic business in 2007. Despite the two-year legal battle, Howard said he remained grateful for the support he had received from the local community. “Salina is my hometown; I love it here,” Howard said in a statement released through the Kansas Justice Institute after the court ruling. “The reason I love this community, this town, is because of all of the support everyone has given me. Thank you for standing behind me and supporting me through this.” Howard also said the national attention surrounding the legal case had unexpectedly helped the restaurant attract more customers. “My sales have gone up because people are coming to find out what the fuss is about,” he said. “So thank you, city of Salina.” Following the federal appeals court’s decision, Howard plans to ask Benson to finish painting the flying saucer artwork on the restaurant’s outside wall.
