In Win for Sex Shop, Sixth Circuit Strikes Down Kentucky Billboard Law

An adult bookstore in Kentucky can keep its roadside billboard after a Sixth Circuit panel found state regulations on such advertisements violate the store’s First Amendment rights.

The Potter Stewart U.S. Courthouse in Cincinnati, home of the Sixth Circuit Court of Appeals. (Carol M. Highsmith/Library of Congress)

CINCINNATI (CN) — The Kentucky Billboard Act, which regulates both commercial and noncommercial speech, is unconstitutional and cannot be enforced against an adult bookstore that uses an off-site billboard to advertise its business, an appeals court panel ruled.

In an opinion released Tuesday, the Sixth Circuit upheld the decision of a federal judge and determined that the law violates the First Amendment because it regulates billboards based on their content.

L.D. Management Company, owner of the Lion’s Den Adult Superstore in Upton, Kentucky, sued after the state’s Transportation Cabinet ordered it to remove a billboard near Interstate 65.

The billboard is located on a tractor-trailer and sits on an adjacent piece of real estate, an important distinction under Kentucky law, which requires off-site advertisements to be fixed to the ground and permitted.

U.S. District Judge Justin Walker, an appointee of Donald Trump, granted L.D. Management’s motion for summary judgment in April 2020, ruled the Billboard Act unconstitutional and prevented the state from enforcing it against the company.

Kentucky appealed to the Cincinnati-based Sixth Circuit, and the case was argued virtually just over two weeks ago.

U.S. Circuit Judge Jeffrey Sutton wrote the court’s terse, six-page opinion, and did not mince words in his analysis of the statute.

“Consider some ways,” he wrote, “in which the commonwealth would treat Lion’s Den differently if it advertised on-site activities. It could put up a sign that said ‘This Land for Sale.’ Or one that said ‘Pumpkin Picking this Weekend.’ Or one that said ‘Used Tractor Trailer for Sale.’ Or one that said ‘This Billboard Space for Rent.’ Or one that said ‘Register to Vote’ here (if that were true),” the judge wrote. (Parentheses in original.)

He added, “To each of these advertisements the Billboard Act’s restrictions would not apply. Because the message on the billboard makes all the difference, the Act amounts to a content-based regulation of speech.”

Sutton, an appointee of George W. Bush, cited the 2019 Sixth Circuit case Thomas v. Bright, which struck down a nearly identical Tennessee law and was also used by Walker to support his decision at the district court level.

The unanimous three-judge panel dismissed Kentucky’s arguments about “safety and aesthetics,” finding they are not legitimate state interests that allow for separate standards under the Billboard Act because they did not hold up to strict scrutiny.

“Kentucky has admitted that Lion’s Den’s billboard would not affect the state’s [safety] interests any differently if it discussed on-site activities,” Sutton wrote.

As for aesthetics, Sutton cited the 1993 U.S. Supreme Court case City of Cincinnati v. Discovery Network and said that billboards “about on-site activities pose ‘no greater … eyesore’ than billboards about off-site activities.”

The Cincinnati case involved the regulation of commercial and noncommercial newspaper racks, and the nation’s high court found the city’s apprehension about aesthetics were outweighed by First Amendment concerns.

Sutton also cited a 2020 decision from the Fifth Circuit to bolster his decision and the application of strict scrutiny. In Reagan National Advertising of Austin v. City of Austin, the New Orleans-based appeals court applied strict scrutiny to a city sign code that included different standards for on-site and off-site advertisements.

“When the city of Austin invoked its interests in safety and aesthetics,” Sutton wrote, “the Fifth Circuit reasoned, as we do here, that the on-site exception made the sign code fatally underinclusive.”

U.S. Circuit Judges John Bush and Eric Murphy, both Trump appointees, also sat on the panel and joined in Sutton’s opinion.

Neither party immediately returned a request for comment.

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