You asked for information on a Missouri law banning billboards advertising sexually oriented businesses near highways.

SUMMARY

A Missouri law prohibits billboards and exterior advertising signs for adult cabaret or sexually-oriented businesses within one mile of a state highway. If such a business is located within one mile of a highway, it can display (1) one sign up to 40 square feet in size that provides basic identification information and (2) one sign stating that the premises are off limits to minors. It also allows signs in place when the law took effect that do not conform to its requirements to remain but they “should be made to conform” by August 28, 2007 (within three years of the law's passage).

Business owners who violate the law commit a class C misdemeanor (punishable by up to 15 days in prison, a fine of up to $ 300, or both) and each week in violation is a separate offense.

The law states that it is designed to protect public policy interests including mitigating the adverse secondary effects of sexually oriented businesses; improving traffic safety; limiting harm to minors; and reducing prostitution, crime, juvenile delinquency, deteriorating property values, and lethargy in neighborhood improvement efforts (Mo. Rev. Stat. § 226. 531).

Business owners challenged the law arguing that it violated their First Amendment right to free speech. A federal district court upheld the law as a valid regulation on commercial speech. The court found that the government's stated purpose showed that it had a substantial interest, the law directly advanced that interest, and the law was narrowly tailored to achieve that interest (Passions Video, Inc. v. Nixon, No. 04-0760-CV-W-GAF, February 18, 2005). The ruling is on appeal to the federal 8^th Circuit Court of Appeals.

To provide additional information about laws regulating billboards, we attach an OLR Report on this topic (2004-R-0836) and another report discussing Connecticut's laws governing signs on highways (2006-R-0369).

FEDERAL DISTRICT COURT RULING

Business owners challenged the Missouri law arguing that it violated their First Amendment right to free speech.

In its opinion, the federal district court first discussed the U. S. Supreme Court precedents on free speech. It stated that speech related solely to economic interests is “commercial speech,” and because the Missouri law regulates only billboards or exterior advertising for these businesses, it regulates commercial speech.

The court then recited the U. S. Supreme Court's test for determining whether a law violates a right to free commercial speech.

1. Does the First Amendment protect the speech in question?

2. Is the government interest substantial?

3. Does the law directly advance the government's claimed interest?

4. Is the law more extensive than necessary?

Regarding the first part of the test, the court stated that the First Amendment protects speech as long as it concerns lawful activity and is not misleading. The parties did not dispute this part of the test.

Regarding the second part of the test, the court considered whether the government's interest was substantial by looking at the law's stated purpose, which includes addressing the adverse secondary effects of sexually-oriented businesses, improving traffic safety, limiting harm to minors, limiting criminal activity, and improving neighborhoods. The court stated that the government can rely on the experience of other jurisdictions in determining the needs to be addressed in relation to adult businesses and it does not need to provide new studies and independent evidence if it relies on evidence reasonably believed to be relevant to the problem. The court looked at the legislative history, discussing experiences in three states and St. Louis, and found that the experiences relied on were sufficient to establish a substantial interest.

Regarding the third part of the test, the court stated that to show that the law directly advances the government's claimed interest, it must show that the harms are real and the law will alleviate them to a material degree. The court found that the state sufficiently demonstrated that the harm is real through the experiences of other jurisdictions and lawmakers can use common sense to determine that controlling billboards can enhance traffic safety. It stated that enhancing traffic safety includes making signs less distracting to drivers and less of a nuisance for children. The court also noted that motorists on highways, unlike on city streets, cannot choose alternate routes to avoid exposure to adult business signs. It stated that the subdued signs will lessen the impairment of the neighborhood's quality and character and property values. The court found that the law advanced Missouri's interests.

Finally, under the fourth part of the test, the government must show that the law is narrowly tailored. It must affect only the category of business shown to produce the unwanted secondary effects. It must promote a substantial government interest that absent regulation would be achieved less effectively and the chosen means must not burden more speech than necessary to further the government interest. The court found that the law was narrowly tailored because it restricted only adult business billboards within one mile of a state highway and it allowed those businesses located within a mile to use identifying signs. It found that the law did not limit other channels of advertising and communication for these businesses and it did not limit material within the businesses themselves.

The court concluded that the law did not infringe on First Amendment rights. It also rejected an argument that the law violated the constitution's equal protection clause.

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