The Eighth Circuit U.S. Court of Appeals today unanimously invalidated Missouri Revised Statute 226.531, which prohibited advertising within one mile of a state highway by any business classified as an "adult cabaret" or "sexually oriented business." Plaintiffs in the lawsuits which brought this issue before the court were Passions Video and Lion's Den, both adult-oriented businesses which would have been affected by the law.
The cases were argued by First Amendment attorneys – and long-time veterans of the anti-adult wars – Dick Bryant and J. Michael Murray, neither of whom were available for comment at press time. However, Murray has previously noted that he is the attorney who is coordinating the fight nationwide against similar billboard laws.
The Eighth Circuit analyzed the Missouri law under the criteria set forth in a 1980 case, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, which proposed a four-part test to be applied to the government's power to restrict commercial advertising, and found that the law failed the fourth prong of that test.
"To determine whether the regulation on commercial speech is constitutionally valid," wrote Senior Judge Gerald Heaney, presiding over a three-judge panel of the court, "we determine whether: (1) the affected speech concerns lawful activity and is not misleading, therefore protected by the First Amendment; (2) the government’s asserted interest in regulating the speech is substantial; (3) the regulation directly advances the asserted interest; and (4) the regulation restricts no more speech than necessary to serve the asserted interest. The state 'bears the burden of identifying a substantial interest and justifying the challenged restriction.'"
The court had no trouble finding that both the speech and the state met their "burdens" under the first two prongs: The speech was non-obscene and the state has an interest, according to the court, in "mitigating 'the adverse secondary effects of sexually oriented businesses, [improving] traffic safety, [limiting] harm to minors, and [reducing] prostitution, crime, juvenile delinquency, deterioration in property values, and lethargy in neighborhood improvement projects.'"
But while the court also found that the state met its burden under the third prong, which, according to the court, was to "reduce the adverse secondary effects of sexually oriented businesses by limiting the presence of sexually oriented businesses," but found that the law restricted more speech than was necessary to accomplish the state's goals, at least one First Amendment attorney thinks the court dropped the ball by not finding that the state failed to satisfy that third prong as well.
"It's hard to say that a mile restriction – anything within a mile of a highway – is narrowly tailored to anything," assessed Chicago attorney Reed Lee. "I think the interesting feature is that under the third prong, the court said, 'Well, this is really a way of regulating secondary effects.'"
"Now, assume for a moment that there are in fact secondary effects from an adult business," Lee continued. "The fact that the state doesn't understand that is brought out by the fact that the state repeats its secondary effects argument when it says, 'and we're also trying to combat blight' and the things that it lists in one of its arguments are essentially what the secondary effects are. So the state didn't even understand secondary effects analysis enough to know what secondary effects are; it was just reciting the mantra. But one of the things it said is, 'We're trying to combat these things, and we're trying to combat these things by limiting advertising, so that will limit their patrons, and that will limit their business, and then they'll have to close up and then there'll be no more secondary effects.' The court recites that that was their reasoning. What the court didn't do was, the court didn't say that that reasoning was faulty. It didn't have to because it went through the prongs in order, and it said, 'Okay, that's fine for prong three but they failed prong four.' Now, if they hadn't failed prong four, then maybe the panel would have looked more closely at prong three."
In the court's own words, "The state argues that its ultimate goal is to reduce the adverse secondary effects of sexually oriented businesses by limiting the presence of sexually oriented businesses. Under that theory, restricting the amount of advertising by the affected businesses would reduce the number of customers that patronize the affected business, thus reducing profits, and ultimately forcing the affected business to close."
However, Lee notes that that reasoning by the state runs afoul of Justice Anthony Kennedy's very clear words in his concurring opinion in City of Los Angeles v. Alameda Books.
"In Renton [v. Playtime Theatres], the Court determined that while the material inside adult bookstores and movie theaters is speech, the consequent sordidness outside is not," Justice Kennedy wrote. "The challenge is to correct the latter while leaving the former, as far as possible, untouched. If a city can decrease the crime and blight associated with certain speech by the traditional exercise of its zoning power, and at the same time leave the quantity and accessibility of the speech substantially undiminished, there is no First Amendment objection..."
"The plurality's analysis does not address how speech will fare under the city's ordinance," Justice Kennedy later stated. "As discussed, the necessary rationale for applying intermediate scrutiny is the promise that zoning ordinances like this one may reduce the costs of secondary effects without substantially reducing speech. For this reason, it does not suffice to say that inconvenience will reduce demand and fewer patrons will lead to fewer secondary effects. This reasoning would as easily justify a content-based tax: Increased prices will reduce demand, and fewer customers will mean fewer secondary effects. But a content-based tax may not be justified in this manner. It is no trick to reduce secondary effects by reducing speech or its audience; but a city may not attack secondary effects indirectly by attacking speech." [Citation removed]
"Justice Kennedy didn't put it in exactly those words," Lee analyzed, "but what he's effectively saying to governments is, 'If you can find some way to lower the ratio of secondary effects to expression, then okay, you make that case for me and I'll give you intermediate scrutiny. But if you're combating secondary effects by combating the expression, you're doing it the old-fashioned way and you get the old-fashioned result, which is strict scrutiny.' So it would have been nice if the Eighth Circuit panel had gone there but it didn't need to, and especially the Eighth Circuit is not a great court for these things, so any victory is sweet."
However, the Passions court does get very close to Justice Kennedy's idea, though without citing Alameda Books to get there.
"In the final step, the 'critical inquiry' is whether the regulation’s 'complete suppression of speech ordinarily protected by the First Amendment is no more extensive than necessary to further [Missouri’s] interest in' reducing the secondary effects of adult businesses," Judge Heaney wrote, citing the Central Hudson decision. "While the state need not pursue the least restrictive means, it must enact a statute that is 'reasonable' and 'narrowly tailored to achieve the desired objective.' Lorillard Tobacco, 533 U.S. at 556 (additional citations and quotations omitted). The statute cannot 'curtail substantially more speech than is necessary to accomplish its purpose.' Krantz v. City of Fort Smith, 160 F.3d 1214, 1222 (8th Cir. 1998). The availability of obvious and numerous less-burdensome alternatives to the restriction factors into the consideration of whether the 'fit' is reasonable."
"It is clear that section 226.531 regulates the affected business’s speech; it threatens criminal prosecution for the mere inclusion of the name or address of an affected business on billboards within one mile of a state highway," the opinion continues. "The Missouri statute 'sacrifices an intolerable amount of truthful speech about lawful conduct.' Greater New Orleans Broad. Assoc., 527 U.S. at 194. The prohibition is directed at speech beyond that which would lead to the stated secondary effects, and is not narrowly tailored to achieve Missouri’s stated goal... Thus, Missouri statute section 226.531, in its entirety, is unconstitutional because it fails to survive scrutiny under the Central Hudson test for regulations on commercial speech."
The Eighth Circuit's clear and unambiguous dismissal of Missouri's anti-adult billboard law should serve as a warning to the several other states which are considering enacting similar laws, perhaps especially in light of Passions Video co-owner Gene Gruender's promise that, "The next step is, we will file suit to recover all our attorney fees."
