Posted by: Patricia Salkin | April 24, 2020

Fed. Dist. Court in KY Rules Kentucky’s Billboard Act Unconstitutional In Its Entirety

This post is republished with permission from the Rocky Mountain Sign Law Blog.

In late April, in a case filed by an adult bookstore challenging the application of Kentucky’s Billboard Act to one of its advertisements, a federal judge of the Western District of Kentucky found the entire Billboard Act to violate the First Amendment.

Lion’s Den is a chain of adult “superstores” with locations along major highways throughout the Midwestern United States.  At one particular location along I-65 in Kentucky, Lion’s Den affixed one of its billboards to the side of a truck trailer, such that it was visible from the highway.  The Kentucky transportation department ordered Lion’s Den to remove the sign, on the grounds that it was not secured to the ground and located on a mobile structure and because the store lacked a permit for the billboard.  The basis for the state’s order was that the Kentucky Billboard Act prohibited the sign.  Under the statute, however, the regulations in question were only applied to off-premises signs.

In a relatively short order, the district court found that the Billboard Act was unconstitutional, both facially and as applied.  Although the court relied on Thomas v. Bright, a recent Sixth Circuit decision that invalidated the Tennessee Billboard Act as applied to noncommercial speech, it still found that the on-premises/off-premises distinction failed intermediate scrutiny.  The court observed that the Lion’s Den billboard did not interfere with aesthetics or traffic safety along I-65, and certainly not in a manner worse than an on-premises sign of the same nature would have.  Because the state failed to provide evidence supporting its arguments that off-premises billboards more seriously injure the state’s interests in aesthetics and traffic safety, the court found the Act unconstitutional.

The court further refused to sever the unconstitutional portions of the law from the remainder of the law, instead choosing to invalidate the entire Kentucky Billboard Act, reasoning that the state would not have enacted the law without the unconstitutional portion.

The decision in this case was issued by Judge Justin Walker, the same judge that recently invalidated Louisville’s ban on religious gatherings during the COVID-19 crisis.  Judge Walker received some media fame when he was nominated for his current seat, as the American Bar Association rated him unqualified due to his age (he is 37) and relative inexperience.  He has now been nominated by President Trump to the federal appeals court of the District of Columbia Circuit.  The results of these cases suggest that Judge Walker takes a strict view of First Amendment liberties, as this case further chips away at commercial speech restrictions.

L.D. Mgmt. Co. v. Thomas, ___ F. Supp. 3d ___, 2020 WL 1978387 (W.D. Ky. Apr. 24, 2020).

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