Mediaboss Marketing

28 April 2021

Squire Patton Boggs LLP

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The Kentucky Billboard Act requires a permit for billboards thatadvertise off-site activitiesbut no permit is required foron-site billboard advertising. Lion's Den, an "adultsuperstore" that sought to advertise to interstate driverswith a billboard on a neighbor's property, challenged the lawas a violation of its rights under the First and FourteenthAmendments. The district court agreed with Lion's Den andenjoined enforcement of the Act. Recently,the Sixth Circuit affirmed.

Judge Sutton's opinion for the court proceeded from theproposition that government regulation of speech based on itscontent is constitutional only if the regulation satisfies strictscrutiny. The on-site/off-site distinction is content-based: toknow which rules apply to a billboard, one has to know the messageon the billboard.

And the Act could not satisfy strict scrutiny. Under circuitprecedent, Kentucky's proffered interests in safety andaesthetics did not qualify as compelling, but "even if theseinterests sufficed in the abstract, the Act leaves untouched otherbillboards with similar qualities," and underinclusive lawsare not narrowly tailored.

The court rejected Kentucky's argument that onlyintermediate scrutiny for commercial speech was appropriate.Although Lion's Den's billboard did contain commercialspeech, the Act treated commercial and non-commercial speech alike.Finally, the court noted that in a 2020 decision, the Fifth Circuithad reached essentially the same conclusions "that a billboardlaw like this one must satisfy strict scrutiny" and that"this kind of law fails the test."

For whatever reason, on-site/off-site distinctions are somewhatcommon in state and municipal laws regulating billboards. The SixthCircuit's decision will be helpful to those bringing FirstAmendment challenges to such laws.

Originally Published 1 March, 2021

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Sixth Circuit Concludes That The Kentucky Billboard Act Violates The First Amendment - Government, Public Sector - United States - Mondaq News Alerts