The first lawsuit against Missouri's onerous anti-adult billboard law will go to trial on September 27, according to one of the plaintiffs involved in the suit, but the statute now faces more than one challenge.
"The day after the law passed, we filed a federal suit in the Western District of Missouri," explained Nellie Symm-Gruender, co-owner of plaintiff Passions Video, which has two stores in the state. "The first round was, we wanted relief; we wanted them not to be enforcing this until it could be tried."
Also pressing the suit in the Western District is Gala Entertainment of KC Inc., which owns Satin Dolls, a Kansas City strip club. But in early April, Dr. John Haltom, owner of 10 adult stores in six states, filed his own suit in the federal district court for the Eastern District of Missouri on behalf of his Johnnie 'O's stores in the St. Louis suburbs of Florissant and Fenton.
Haltom terms his stores "lingerie boutiques," and notes that adult materials take up less than one-quarter of his display space.
Haltom and his attorney, Andrew McCullough, acknowledge that the displays at the Johnnie 'O's stores contain more than 10 percent adult-oriented items, but McCullough said it should take more than that for a store to be considered adult.
"We're not the kind of business this [law] can legally apply to," McCullough said, noting that there's no evidence of negative secondary effects connected with Haltom's stores – nor, in fact, to any of the businesses or signage involved in either lawsuit.
"The judge [in the Western District case] said, 'Well, you know, it's obvious there's secondary effects'," recounted Dick Snow, owner of the Bazookas nightclub in Kansas City. "Well, nobody's ever said there were negative secondary effects from a sign. He just made that up himself. I think he was mixed up in his mind between a store and a sign. I don't think he even bothered to read the case, to tell you the truth; he just ruled on it based on feeling."
The law, introduced by state Sen. Matt Bartle (of SB32 infamy) and passed last year, prohibits billboards and other signs for adult businesses to be located within one mile of state highways, and gives adult businesses which already have such signs three years to bring their existing billboards into compliance. By 2008, an adult-oriented business located within a mile of a highway could have just two signs: One showing the business' name and operating hours, the other noting it is off-limits to minors – not exactly the haute couture of advertising messages.
The law applies to any business where more than 10 percent of display space is used for "sexually oriented materials." Those are defined as "any textual, pictorial or three dimensional material that depicts nudity, sexual conduct, sexual excitement or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors."
"We shouldn't have a situation where we have to explain to our children what 'XXX' means or what an 'adult toy' is," Bartle explained after the bill's introduction. "It is disgusting. It is a sign of the decay up and down our roadways."
But the Missouri billboard law is much more encompassing than that.
"If you're an adult bookstore," noted Snow, "according to this law, you can't put up a billboard that says 'Vote in November' because of who you are, no matter what your message is, if you're an adult store. That's how bad this law is."
Restricting billboards with political messages, even if paid for by an adult business, would be a clear violation of that business' constitutional rights.
Dick Bryant, the attorney for Passions Video and Gala Entertainment, immediately sought a permanent injunction to keep the law from going into effect, and also filed a motion for summary judgment, but Judge Gary A. Fenner denied both motions, saying that plaintiffs had plenty of time before the law would take effect to press their case at trial.
"We got a bad judge," said Snow. "A judge, it turns out, who used to be the prosecutor in the '70s and '80s in St. Joe and ran all the adult bookstores out of St. Joe. He was a Clinton appointee, but we found out later that he was an old-time anti-porn crusader."
"Even the attorney from the A.G.'s [Attorney General's] office thinks it's an absurdly unconstitutional law," Snow continued, "and I think we agreed to stipulate to 25 points that pretty much showed that it was unconstitutional, and the judge ignored them all, refused to give us a permanent injunction and was going to dismiss the case itself."
But the mere fact that there's a case in process has caused problems for Haltom, who used to have seven billboards in the St. Louis area advertising his businesses. He now has just two, and because of the law's ban on adult advertising that will take effect, by some estimates, in late 2007, billboard owners are refusing to sell him ad space, citing the new law as the reason for their refusal.
"Their basic plan is to eliminate our advertising and put us out of business," Haltom said. "The citizens of Missouri have to realize it's the adult stores today, but what's it going to be tomorrow?"
