988 F.3d 836
6th Cir.2021Background
- Lion’s Den, an adult-superstore near Exit 251 on I‑65 in Kentucky, placed a billboard on a rented lot by attaching signage to a semi‑tractor trailer advertising the nearby store.
- Kentucky’s Billboard Act treats ‘‘off‑site’’ signs (not attached to the advertised property) differently from ‘‘on‑site’’ signs: off‑site signs must be ground‑anchored, non‑mobile, and permitted; on‑site signs are exempt from those requirements.
- The Act applies to both commercial and noncommercial speech; its definition of ‘‘advertising device’’ encompasses noncommercial messages as well as commercial ones.
- The Kentucky Department of Transportation ordered removal of Lion’s Den’s trailer sign; Lion’s Den sued, alleging First Amendment (and Fourteenth Amendment) violations and seeking an injunction.
- The district court enjoined enforcement of the Act as to Lion’s Den; the Sixth Circuit affirmed, holding the Act is content‑based and not narrowly tailored to Kentucky’s asserted interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Billboard Act is content‑based | The Act distinguishes on‑site vs. off‑site signs, so it regulates speech based on message/topic | The distinction regulates form/location, not content; intermediate scrutiny for commercial speech should apply | Held content‑based because enforcement requires examining message/topic; strict scrutiny applies |
| Proper level of scrutiny (strict vs. intermediate) | Even if commercial, the Act sweeps in noncommercial speech; content‑based law requires strict scrutiny | Kentucky urged Central Hudson intermediate test for commercial speech and reliance on Metromedia/legislative judgments | Held strict scrutiny governs because the Act covers commercial and noncommercial speech alike and is facially content‑based |
| Whether Act is narrowly tailored to safety/aesthetics | Lion’s Den: interests asserted are underinclusive; similar on‑site signs pose same harms | Kentucky: safety and aesthetics are compelling and justify an on‑site/off‑site distinction | Held not narrowly tailored/underinclusive; permits similar signs that undermine stated interests, so fails strict scrutiny |
| Severability of on‑site exception | Lion’s Den argued Act invalid as applied; Scenic Kentucky urged severance of on‑site exception | Kentucky did not seek severance on appeal | Held no severance addressed (State forfeited); injunction limited to Lion’s Den; severance left for a case where party raises it |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based sign restrictions trigger strict scrutiny)
- Thomas v. Bright, 937 F.3d 721 (6th Cir. 2019) (on‑premises exception renders a billboard law content‑based)
- Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690 (6th Cir. 2020) (content‑based statutes covering commercial and noncommercial speech receive strict scrutiny)
- Reagan Nat’l Advertising of Austin, Inc. v. City of Austin, 972 F.3d 696 (5th Cir. 2020) (applied strict scrutiny to an on‑site/off‑site sign distinction and found it underinclusive)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (regulation distinguishing similar displays based on content raises constitutional problems)
- Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980) (commercial‑speech intermediate scrutiny test)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (plurality opinion discussing on‑site/off‑site billboard distinctions)
- Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469 (1989) (narrow tailoring and severability principles)
- Midwest Media Prop., L.L.C. v. Symmes Twp., 503 F.3d 456 (6th Cir. 2007) (discussing application of commercial‑speech doctrine to sign regulations)