TOPEKA, Kan.—Citing his state's "budget challenges," Kansas Attorney General Steve Six announced today that his office had reached an agreement with the Lion's Den Adult Superstore in Abilene and will not appeal the June 26 order of Judge Julie A. Robinson prohibiting enforcement of Kansas' anti-adult billboard law.
"Given the state's budget challenges, it would be fiscally irresponsible to continue litigation that has very little chance of success," Six said in a press release. "This agreement avoids unnecessary litigation costs and prevents taxpayers from being on the hook for the plaintiff's attorney's fees."
Noting that similar laws had already been struck down in Georgia, South Carolina and Kansas' neighbor to the east, Missouri, Six acknowledged that the Kansas statute was "substantially identical" to the Missouri law which had been struck down, since "Kansas copied its statute from Missouri after the Missouri federal district court held the statute to be constitutional."
"On appeal, the Eighth Circuit subsequently reversed the district court's ruling and held that the Missouri statute is unconstitutional," Six stated.
As noted in AVN's previous story, the law, K.S.A. §68-2255(b)-(d), prohibited advertising by adult businesses on outdoor billboards within one mile of a state highway, even if such advertising made no mention of anything adult-related, and allowed only two signs on the store's premises: one stating that only adults were permitted entry to the business, and one identifying the name of the business.
In fact, Lion's Den's sign read simply, "Lion's Den, Adult Superstore, Exit 272," which plaintiff's attorney and First Amendment advocate J. Michael Murray described as "pure speech and nothing more."
In granting Murray's Motion for Preliminary Injunction, Judge Robinson relied heavily on the Supreme Court's four-part test for the limits of commercial speech regulation in Central Hudson Gas & Electric Corp. v. Public Services Commission.
"The Central Hudson test," Judge Robinson wrote in her opinion, "asks the following: (1) whether the expression is protected by the First Amendment (i.e., whether it is a prohibition against truthful, nonmisleading speech about a lawful product); (2) whether the asserted governmental interest is substantial; (3) whether the regulation directly advances the governmental interest asserted; and (4) whether it is not more extensive than necessary to serve that interest."
The judge then ruled that despite the state's previous attempts to prosecute Lion's Den for selling what it alleged were "obscene devices," the store was engaged in a legal business.
"As the record stands today, Lion’s Den has submitted evidence that it markets the products they sell to those interested in 'a healthy sex life' and not to those with a 'prurient interest in sex'," the judge wrote. "Furthermore, there are no currently pending criminal charges against plaintiff based on these allegations. ... Because defendant acknowledges, as it must, that not all of the products offered for sale at Lion’s Den are illegal, its claim that the advertising necessarily proposes an illegal transaction is misplaced. Given this finding, there is no need for the Court to pass on the constitutionality of a statute not before it."
Judge Robinson also ruled that although the state might in fact have substantial interests, as it claimed, to use the statute to "mitigate the adverse secondary effects of sexually oriented businesses; to improve traffic safety; to limit harm to minors; and to reduce prostitution, crime, juvenile delinquency, deterioration in property values and lethargy in neighborhood improvement efforts," she did not believe that the state would be able to establish a connection between the anti-speech effects of the billboard law and the promulgation of the stated government interests, nor would it be able to show that the restrictions on the store's "billboard speech" would be no more extensive than necessary to achieve the state's professed goals.
Of course, Six's decision was immediately decried by pro-censorship forces both within the state government and without.
"While I have long been a vocal defender of free speech rights, I also believe that our families should be free to travel down our highways without fear of exposing their children to suggestive and lurid advertising," said State Sen. Tim Huelskamp, author of the 2006 law. "As such, I am greatly disappointed that Attorney General Six has chosen not to defend this law, which passed through the entire legislature with only six dissenting votes."
"Courts have upheld for over 35 years that sexually oriented businesses have negative effects on communities, including increased crime—especially sexual crimes—increased sexually transmitted diseases, general blight and property devaluation as well as drug trafficking," claimed Phillip Cosby, head of the local chapter of the National Coalition for the Protection of Children and Families. "For the elected officials to say that they cannot uphold their first job of public safety, when that is their primary job, is irresponsible."
At press time, neither Murray nor co-counsel Richard Bryant were available for comment.