Lion's Den Billboard Is 1st Amendment-Protected in Kentucky

UPTON, Ky.—Kentucky has a reputation as a fairly conservative state, although in the 2018 election, voters elected Democrat Andy Beshear as governor, and challenger Amy McGrath seems to have a pretty good chance of unseating ultra-conservative Sen. Mitch McConnell in the 2020 election. But at least one federal judge in the Western District of the state is a fervent and articulate defender of the First Amendment, as his decision in a lawsuit brought by J. Michael Murray on behalf of the Lion's Den adult boutique makes clear. Until U.S. District Judge Justin R. Walker issued his Memorandum Opinion and Order last Friday, Kentucky had some interesting laws that impinged on its citizens' free speech rights. One outlawed the existence of advertising signs that weren't attached to the ground, as well as those affixed to a heavy but mobile structure—and it required a permit to post such advertising "in a protected area" in the first place. Of course, Lion's Den wasn't trying to run afoul of the law when it rented space from a former employee, bought or rented a tractor-trailer and affixed a sign to the trailer reading "Lion's Den Adult Superstore Exit Now" just before the I-65 exit in Upton. But doing so ran afoul of three Kentucky Administrative Regulations: 603 KAR 10:010 Section 1(4)(d), which prohibits "The erection or existence of a static advertising device ... in a protected area if the device ... [i]s not securely affixed to a substantial structure permanently attached to the ground"; 603 KAR 10:010 Section 1(4)(m), which states, "The erection or existence of a static advertising device shall be prohibited in a protected area if the device ... [i]s mobile, temporary, or vehicular"; and 603 KAR 10:010 Section 7(2), which states, "With the exception of a nonconforming static advertising device, a permit shall be required from the department for a static advertising device located in a protected area." Or as Judge Walker put it in his Memorandum Order, "Kentucky’s regulations are content-based restrictions on speech. That’s because the legality of Lion’s Den’s sign depends on what the sign says. If it refers to on-site activities, it doesn’t need a permit. If it refers to off-site activities, it needs a permit, can’t be mobile, and must be securely affixed to the ground." The judge rejected Kentucky's claim that a 1987 Sixth Circuit decision made its regulations lawful because the state's purpose was "content-neutral," but this court was already familiar (perhaps thanks to Lion's Den's legal arguments) with the U.S. Supreme Court's 2015 decision in Reed v. County of Gilbert, which stated that, "A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech." Moreover, as the judge noted, "Kentucky admitted that it has no evidence that Lion’s Den’s billboard interfered with aesthetics along I-65 in a different manner than if it referred to on-premises activities. Kentucky also admitted it has no evidence that Lion’s Den’s billboard has distracted any driver. And rather than vindicating property owners’ rights, Kentucky has undermined them by denying a landowner the right to continue leasing his property to Lion’s Den." Game, set and match! But the judge wasn't finished. "What’s worse than Kentucky’s billboard policing is how it may have selectively policed the particular billboard in this case," the judge wrote. "Lion’s Den told Kentucky about other offending billboards on mobile structures and even provided photos of them. This evidence—which Kentucky filed in support of its summary judgment motion—raises a suspicion that Kentucky specifically targeted Lion’s Den and ignored other billboards that broke its rules. If so, this selective enforcement is viewpoint discrimination, an even more 'egregious' violation of the First Amendment." [Emphasis in original] What? Kentucky target an adult business for no good reason? Pshaw! But while Judge Walker noted that "early American courts," when determining a statute to be unconstitutional, simply refrained from enforcing that law, the judge felt it was his duty to officially invalidate the statutes in question. "The billboard for Lion’s Den may remain where it stands," the judge states in the Memorandum Order's final paragraph. "The Kentucky Billboard Act is unconstitutional in its entirety." The case is L.D. Management Company and American Pride IX, Inc. v. Greg Thomas, in his official capacity as Secretary of the Kentucky Transportation Cabinet, Civil Action No. 3:18-CV-722-JRW.