CINCINNATI—By all logic, the case of the State of Kentucky versus L.D. Management Company, which owns the Lion's Den adult store location in Upton, Kentucky, should have ended when U.S. District Judge Justin R. Walker issued his ruling in the case last April, since the issue was pretty clear: Kentucky was trying to trample Lion's Den's free speech rights by ordering the store to take down the billboard it had erected on the side of a tractor-trailer sitting on land owned by a former Lion's Den employee just off I-65, which advertised that the store could be found at the next exit off the highway.
"Kentucky’s regulations are content-based restrictions on speech," the judge wrote in his Memorandum Order. "That’s because the legality of Lion’s Den’s sign depends on what the sign says. If it refers to on-site activities, it doesn’t need a permit. If it refers to off-site activities, it needs a permit, can’t be mobile, and must be securely affixed to the ground."
But Kentucky's Transportation Cabinet, which has its own Office of Legal Services, wasn't having any of that. After all, no less than three sections of Kentucky's Administrative Regulations (KAR) prohibit, according to 603 KAR 10:010 Section 1(4)(m), "The erection or existence of a static advertising device ... in a protected area if the device ... [i]s mobile, temporary, or vehicular," and two other regulations contain similar prohibitions.
But it's hard to believe that the Transportation Cabinet doesn't have a hard-on for adult businesses, since as Judge Walker pointed out, "Kentucky admitted that it has no evidence that Lion’s Den’s billboard interfered with aesthetics along I-65 in a different manner than if it referred to on-premises activities. Kentucky also admitted it has no evidence that Lion’s Den’s billboard has distracted any driver. And rather than vindicating property owners’ rights, Kentucky has undermined them by denying a landowner the right to continue leasing his property to Lion’s Den."
However, the state decided to appeal Judge Walker's ruling nonetheless, and in arguing Kentucky's case before a Sixth Circuit panel, Transportation Cabinet attorney Kyle W. Ray argued that aside from whatever aesthetic problems the state has with the billboard, the real issue is the fact that the billboard is commercial advertising, and therefore doesn't rate as much speech protection as it would if the message being advertised were non-commercial.
According to Ray's pre-argument brief, "Kentucky adopted the statutes and regulations governing advertising devices for the following purposes: '(1) to provide for maximum visibility along interstate highways...; (2) to prevent unreasonable distraction of operators of motor vehicles; (3) to prevent confusion with regard to traffic lights, signs or signals or otherwise interfere with the effectiveness of traffic regulations; (4) to preserve and enhance the natural scenic beauty or the aesthetic features of the aforementioned interstate highways...; and (5) to promote maximum safety, comfort and well-being of the users of said highways.'” Moreover, the statute distinguished between signs relating to on-premises activities, which are okay under the statute, versus signs related to off-premises activities, which are prohibited—another thorny logic problem.
Trouble was, the Lion's Den billboard didn't violate any of Kentucky's enumerated aesthetic standards ... so Ray took a different tack in oral argument.
"This case is a commercial speech case...," Ray told the panel. "The ordinance does apply to both commercial speech and non-commercial speech, but in this case, the only speech involved is commercial speech, and because it's commercial speech, the Kentucky Billboard Act which regulates this outdoor commercial advertising device of the appellees is subject to intermediate scrutiny under Central Hudson and the seminal Supreme Court case of Metromedia vs. the City of San Diego."
Central Hudson Gas & Electric Corp. v. Public Service Commission is a seminal commercial speech case which established four criteria for when commercial speech can be regulated. Those criteria are, briefly, 1) if the speech is untruthful or likely to deceive; 2) if the state has a substantial interest that can be achieved by regulating the speech, although 3) the restriction on the speech must directly advance the state's interest; and 4) the regulation may not censor more speech than is necessary to achieve the state's goal. However, Kentucky presented no arguments that its censorship of the Lion's Den billboard advanced any state interest.
In the Metromedia case, a divided U.S. Supreme Court reversed a California Supreme Court decision which had found that San Diego's anti-outdoor sign law was constitutional, and though the high court plurality found that San Diego's attempt to ban commercial speech on outdoor signage met the criteria set forth in Central Hudson, it noted that similar restrictions could not constitutionally be applied to non-commercial speech—and in fact, two justices found the entirety of San Diego's law unconstitutional no matter what type of speech was targeted.
The other problem Ray faced before the panel was that Kentucky's ordinance made no distinction between commercial and non-commercial speech on such a non-anchored billboard, inspiring one panelist to suggest, "If they were told you're okay if you somehow put up non-commercial speech, why couldn't they do an ad, 'Lion's Den here; get off at this exit, and by the way, vote in the next election'? It's not that simple just to say it's true, the actual billboard you regulated may be just classic commercial speech, but once they know how this works, it wouldn't be very difficult to add a non-commercial speech component to it, so I'm not even sure what good this does for you. Once you decide to regulate both, of course someone's gonna say, 'Oh, I see; I can do this as long as I add some non-commercial speech?'"
Ray didn't really have an answer for that, short of admitting that the legislature could rewrite the ordinance if it wanted to, but for Lion's Den's attorney J. Michael Murray (a name quite familiar to the adult industry for, among many other cases, his work opposing the federal recordkeeping and labeling law known as 2257), the case was a basic free speech case, and under several Supreme Court cases, most notably Reed v. Town of Gilbert, such cases are to be decided using strict scrutiny, which requires that a speech restriction be justified by a compelling governmental interest, be narrowly tailored to achieve that interest as well as be the least restrictive way to achieve that interest—and the Kentucky statute meets none of those criteria.
But in his argument before the panel, Murray went even further: "We think Judge Walker was correct that even under intermediate scrutiny, on this record, the statute and regulations do not satisfy even the Central Hudson decision. ... We have them [Kentucky] responding to requests for admissions indicating that none of the interests that they advance are implicated by our sign; that it doesn't distract motorists, it doesn't interfere with aesthetics; it doesn't do any of the things the statute is supposed to further, and we also asked them to produce any documents, reports, studies, anything that would support the governmental interests, and they produced nothing. They produced emails that had nothing to do with it."
In his brief to the Sixth Circuit, Murray laid out the history of the billboard, noting that Lion's Den's Director of Marketing had testified that the store needed a sign to make its presence known to travelers on the interstate, and that "the constitutionally protected message that it communicates—'Lion’s Den Adult Superstore Exit Now'—is essential to the store’s ability to attract customers. More particularly, approximately 70 percent of the customers are drawn from the highway, and there are no reasonable alternative avenues of communication available to get the store’s message to patrons and potential patrons as they travel along I-65." Not only that, but Murray noted that, "When the Lion’s Den’s advertising agent contacted LaRue County officials about placing the sign there, the county officials advised that so long as the sign was located at least 90 feet off of the interstate right-of-way, it was lawful to place it there and no permit was necessary," but that later, an employee of the Transportation Cabinet told the store that the sign did not comply with Chapter 177 of Kentucky's Revised Statutes and needed to be removed.
Murray's brief goes into much detail on the various ways the Kentucky statutes restrict both commercial and non-commercial speech, both as to its location and its content, and quotes the deposition of John Devine, former policy analyst for the Transportation Cabinet's Central Office Permits Branch, and others regarding the lawfulness of a number of signs adjacent to I-65, some of which he found to be illegally placed—but the Transportation Cabinet's officers have done nothing about those.
The brief also goes into much analysis regarding billboard and other public sign cases decided by the U.S. Supreme Court, including most notably Thomas v. Bright, and the Sixth Circuit itself, International Outdoor, Inc. v. City of Troy Michigan, concluding that all are in concert with the Supreme Court's ruling in Reed.
Following both attorneys' arguments, the Sixth Circuit took the case under advisement and will likely issue a ruling on the matter with the next few months.
"This is an important First Amendment case," Murray told AVN. "We felt the argument went well. The panel was well prepared and asked excellent questions. We believe we have compelling arguments and remain hopeful. Now we wait for the court's decision and opinion."
