(CN) — The state of Kentucky argued on Friday before an appeals court panel that an advertisement for an adult bookstore on the side of a tractor-trailer violates state law and must be removed.
The state’s transportation department asked the Sixth Circuit panel to overturn the decision of a federal judge who determined the Kentucky Billboard Act is unconstitutional and imposes a content-based restriction on speech.
The billboard in question advertises the Lion’s Den Adult Superstore off Interstate 65 and sits on a piece of land leased to the business by a former employee.
Kentucky says the ad – riveted to the side of a tractor-trailer – is illegal under the Billboard Act because the owners did not obtain a permit, it is not “securely fixed to the ground,” and is on a “mobile structure.”
Importantly, if the billboard advertised activities that occurred on the land where it sits, the law would not apply and there would be no controversy.
L.D. Management Company, the owner of the store, sued the state in federal court in 2018, and was granted a permanent injunction by U.S. District Judge Justin Walker last April.
Walker, an appointee of Donald Trump, granted the company’s motion for summary judgment in a terse, eight-page opinion that described Kentucky’s regulations as “content-based restrictions on speech.”
He cited the Sixth Circuit’s 2019 decision in Thomas v. Bright, which involved a Tennessee law identical to the one at issue in the Lion’s Den case.
In the earlier case, the court “held the regulation unconstitutional because the on-premises/off-premises distinction was not narrowly tailored to serve Tennessee’s asserted interests in public aesthetics, traffic safety, and protection of property owners’ rights,” Walker wrote.
“Here, to justify the on-premises/off-premises distinction, Kentucky asserts public aesthetics, traffic safety, and protection of property owners’ rights,” he added. “Sound familiar?”
Walker also accused Kentucky of selective enforcement of the Billboard Act against L.D. Management because of the subject matter of its ad and blocked further enforcement of the law in its entirety.
In its brief to the appeals court, the state argued Walker erred in his analysis because the Thomas case dealt with noncommercial speech, and called its interests in regulating the commercial speech at issue here “substantial.”
It said Walker should have applied intermediate scrutiny to the law and cited the 1981 U.S. Supreme Court case Metromedia Inc. v. City of San Diego, which it called a “seminal … case regarding commercial outdoor advertising” devices. The ordinances in question in Metromedia prohibited all “off-premises advertising signs,” which makes Kentucky’s less restrictive Billboard Act constitutional, according to the brief.
In its brief to the appeals court, L.D. Management cited a lack of evidence that the advertisement interferes with traffic on the highway or has adversely affected the beauty of the surrounding area.
“In this case,” the company argued, “there is no evidence in the record to support any of the interests the Transportation Cabinet claims the laws are designed to further. Specifically, when asked to produce studies or materials in support of the governmental interests it claims underlie the law, the Transportation Cabinet produced no responsive documents.”
Attorney Kyle Ray argued on behalf of the Kentucky Transportation Cabinet before the Sixth Circuit panel Friday and focused his time on the Supreme Court’s ruling in Metromedia.
Ray told the panel the billboard in this case involves only commercial speech and is therefore subject to intermediate scrutiny.
U.S. Circuit Judge Eric Murphy, a Trump appointee, admitted the Metromedia ruling helps the state, but also pointed out the statute in that case was found to be facially unconstitutional because it regulated both commercial and noncommercial speech, a characteristic shared by the Billboard Act.
U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, went further and asked the state’s attorney if the billboard would be legal if it added a message about voting underneath the advertisement.
“It’s not that simple to say ‘this billboard is classic commercial speech’ … [when] it’s not that difficult to add” noncommercial speech, Sutton said.
Ray answered that such an addition would alter enforcement of the law, but said his arguments are focused on the “facts of this case.”
Attorney J. Michael Murray argued on behalf of L.D. Management and told the panel that the law surrounding commercial speech has changed significantly since the Metromedia ruling.
“There has been a lot of water over the dam since 1981,” the attorney said.
Murray reiterated the argument made in his brief that the state failed to produce evidence to support the governmental interests – aesthetics or distraction of motorists – found in the law.
“None of the interests they advance are implicated by our sign,” he said.
Sutton asked Murray if there is any evidence in the record of the Billboard Act being enforced against noncommercial speech. While the attorney admitted there are no instances of such enforcement, he pointed out that members of the cabinet testified the law would apply equally to noncommercial billboards.
During Ray’s rebuttal time, Sutton seemed convinced that the members’ testimony was sufficient to consider the law overbroad in its scope and “quite chilling” in relation to First Amendment rights.
Overbreadth “is a strong medicine supposed to be employed as … a last resort,” Ray told the panel, and again pointed to the lack of evidence of enforcement against noncommercial billboards.
Murphy pressed Ray about the members’ testimony, and whether that should be considered conclusive evidence.
Ray remained silent for well over 30 seconds, which prompted Sutton to ask, “Is this a TKO situation?”
“I do believe that testimony is an issue for the cabinet,” the attorney eventually conceded as his time expired.
U.S. Circuit Judge John Bush, also a Trump appointee, rounded out the panel. No timetable has been set for the court’s decision.
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