Law Banning Sexually Oriented Billboards Unconstitutional

A Missouri statute that regulated advertising for businesses that offer sexually explicit entertainment and material–prohibiting such advertising within one mile of a highway– unconstitutionally restricts commercial speech, a federal appeals court ruled.

The court found that the statute as written, as well as interpreted by the trial court, violated the First Amendment. The statute prohibited any billboard or other exterior advertising within one mile of a highway for adult cabaret or sexually oriented businesses.

The statute defined sexually oriented business as any business with more than ten per cent of its display space dedicated for sexually oriented materials. The ban applied regardless of the billboard or advertisement’s content. “Thus, if a business is classified as an adult cabaret or sexually oriented business, it is prohibited from erecting any billboard or other exterior advertising sign, without regard to the content of the billboard,” the Eighth Circuit Court wrote. “Although we adopt, where possible, an interpretation that renders a statute constitutional, the plain language of section 226.531 precludes a constitutional interpretation.”

In addition to prohibiting advertising within one mile of a highway, the statute restricted the number of exterior signs on the premises of the business to one identification sign and one sign that the business is off limits to minors. The identification sign could only include the name, street address, telephone number and operating hours of the business. The court found that this provision was not narrowly drawn to meet the state’s asserted goals to reduce the adverse secondary effects of sexually oriented businesses. Under the statute, the court said should “an affected business owner choose to post a sign with the price of gasoline, or a sign advertising a nationally-known soft drink on the exterior of the business, he or she would be subject to criminal prosecution.”

Passions Video, Inc. et al. v. Jay Nixon, Attorney General of the State of Missouri, No. 05-3847 and 05-4053, Eighth Circuit, filed August 21, 2006.