Agenda - Planning Commission - 11/02/2006

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Page 2 - October 10, 2006 Z.B. First Amendment - Statute restricts placement, content of signs for " sexually oriented businesses Business owners challenge statute's constitutionality Citation: Passions Video Inc. v. Nixon, 8th U.S. Circuit Court of Appeals, Nos. 05-3847 and 05-4053 (2006) The 8th U.S. Circuit has jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. MISSOURI (08/21/06) - Under a Missouri statute, any business that dedi- cated more than 10 percent of its display space to sexually oriented materials was considered a "sexually oriented business." Further, the statute prohibited the posting of billboards or exterior signs for sexually oriented businesses within one mile of any state highway, without regard to the content of the sign. If a sexually oriented business was located within one mile of a state high- way, it could erect signs, but with restrictions on number, size, and content. Only two signs were allowed, and the content was restricted to the business' name, address, phone number, and hours of operation. . Two owners of establishments that were classified as sexually oriented businesses sued the state, claiming that the statute was unconstitutional. The business owners argued that their First Amendment free speech rights had been violated, and each asked for an injunction against the state, thereby (" allowing them to erect billboards. : The lower court dismissed both business owners' claims. The court stated that the statute was a constitutionally sound regulation of commercial speech. Both business owners appealed, and the cases were consolidated for argu- ment before the 8th U.S. Circuit Court of Appeals. DECISION: Reversed and returned to lower court for further procee~gs. The 8th Circuit found that the statute did not meet the test for regulating commercial speech, known as the Central Hudson test. The.decision in favor of the state was reversed, and the case was returned to the lower court to rehear the business owners' requests for injunctions. The Central Hudson test required that: 1) the speech in question con- cerned lawful actiyity and was not misleading; 2) the government had a sub- stantial interest in regulating the speech; 3) the regulation directly advanced the asserted interest; and 4) the regulation restricted no more speech than was necessary to serve. the asserted interest. The statute met the first two prongs of the test, but the 8th Circuit found that it was not designed narrowly enough to meet the state's asserted goal- reducing the adverse "secondary effects" of sexually oriented businesses - and was not the least restrictive means for achieving it. The state argued that restricting the amount of advertisements for sexually. oriented businesses subsequently would reduce the number of customers at those businesses, ultimately making them less profitable and more likely to @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 40