An adult bookstore successfully challenged Kentucky’s billboard law, which prohibits off-site billboards that are not affixed to the ground, attached to a mobile structure, and posted without a permit. A federal appeals court reasoned that the law’s interests in safety and aesthetics were not sufficient enough to survive a First Amendment challenge.
The controversy arose when Lion’s Den, an adult superstore located in Upton, placed a billboard on nearby property near an interstate. The billboard, affixed to a semi-tractor trailer, read, “Lion’s Den Adult Superstore Exit Now.” The trailer was parked on land owned by a former employee of Lion’s Den.
The Kentucky Department of Transportation ordered Lion’s Den to remove the sign. The department said the sign violated the Kentucky Billboard Act, which imposes special requirements on roadside billboards that advertise activities that are off-site.
Lion’s Den responded with a lawsuit in federal district court, alleging that the billboard law’s differential treatment of off-site and on-site billboards violated the First Amendment. A federal district court agreed with Lion’s Den and declared the billboard law unconstitutional.
The state appealed to the 6th U.S. Circuit Court of Appeals, which affirmed in its Feb. 16, 2021, decision in L.D. Mgmt. Co. v. Gray. The appeals court panel first determined that the Kentucky billboard law was content-based, because it imposed different restrictions on off-site billboards from those on on-site billboards.
“Consider some ways in which the Commonwealth would treat Lion’s Den differently if it advertised on-site activities,” wrote Judge Jeffrey Sutton for the 6th Circuit panel. “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 ‘Billboard Space for Rent.’”
Sutton added: “Because the message on the billboard makes all the difference, the Act amounts to a content-based restriction on speech.”
Because the law is content-based, it must pass the highest form of judicial review, known as strict scrutiny. This means that the government must have compelling – or very strong – interests in the law, and the law must be very narrowly tailored.
“The Billboard Act does not measure up to this ruler,” Sutton wrote. The state asserted the purported compelling interests of safety and aesthetics. But Sutton noted that the state failed to show how off-site billboards presented any more of a safety hazard or aesthetics problem than on-site billboards.
Kentucky argued that strict scrutiny is the wrong standard, because the Lion’s Den billboard was commercial speech, which receives less First Amendment protection than most forms of noncommercial speech, such as political speech. However, Sutton wrote that the Kentucky law applies to both commercial and noncommercial speech.
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).