TOPEKA, Kan. – U.S. District Judge Julie A. Robinson heard arguments yesterday for a temporary injunction in the case of Abilene Retail 30, Inc. – the Lion's Den branch located in Abilene – against the attorney general of Kansas, Stephen N. Six, regarding the state's prohibition on adult businesses having billboards containing any message whatsoever along Kansas' interstate highway system.
The statute in question states, "No sign or other outdoor advertising, for an adult cabaret or sexually-oriented business shall be located within one mile of any state highway except if such business is located within one mile of a state highway then the business may display a maximum of two exterior signs on the premises of the business, consisting of one identification sign and one sign solely giving notice that the premises are off limits to minors. The identification sign shall be no more than 40 square feet in size and shall include no more than the following information: Name, street address, telephone number and operating hours of the business."
Supposedly the 2006 law was enacted 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."
"[L]ethargy in neighborhood improvement efforts"?
"I've heard the first five or six of those, but no, I've never heard of 'lethargy in neighborhood improvements'," stated Richard Bryant, one of the attorneys for the plaintiff. "And of course, where this store is — there's nothing close to them, just a lot of vacant land — there was no evidence of prostitution, no evidence of decreased property values, no evidence of crime – in fact there are signs that prohibit loitering, and say that if you come out there and cause trouble, you'll be arrested. And the most critical thing is, the only evidence that was presented by the attorney general's office was by the store manager on cross-examination, which was supportive of our position. They even acknowledged that the state wouldn't suffer any harm when the judge granted the preliminary injunction."
Lion's Den launched its legal challenge to the law on April 16, and the case is of particular importance now because another portion of the law gave adult businesses just three years to remove any billboards that were already in existence at the time of the enactment – and that's July 1 of this year. The purpose of yesterday's hearing was to obtain an injunction to allow Lion's Den's three billboards to remain in place while its lawsuit moves through the court system.
During the hearing, Terrence Campbell, the attorney for the defendant, had argued that "because some items sold at the Lion's Den Superstore are obscene, its signs along Interstate 70 promote illegal activity."
There's just one problem: Back in 2005, Kansas Senior Judge Robert Innes dismissed a 10-count indictment charging violations of the state's Obscene Devices Act against Lion's Den's Abilene store – charges which had been instigated by anti-adult activist Philip Cosby's "Citizens For Strengthening Community Virtues," a religious censorship group. Those charges were based on Cosby's convincing the local sheriff to buy approximately $1,000 worth of vibrators and other adult novelties, which the local prosecuting attorney deemed to be "obscene" under state law. However, with the dismissal of the earlier charges, there are no pending "obscenity" claims against the store.
"They tried to introduce the fact that they had been charged criminally," Bryant noted. "In fact, they did introduce evidence that they had been charged criminally, but of course, if you read the final decision, you find that these were kicked out."
Lead counsel for Lion's Den J. Michael Murray presented testimony from Sabrina Breeden, the Abilene store manager, who told Judge Robinson that, "These billboards are very important. We rely a lot on the interstate travelers and otherwise we have no way to reach potential customers."
When it came time to cross-examine, Campbell questioned Breeden as to how the adult novelties in the store were packaged, contending that if the devices were marketed to "emphasize their prurient appeal," they could be found obscene under state law. Breeden responded that the novelties were "used to enhance a healthy interest in sex" by the store's adult customers.
"The attorney general's argument was, I thought, strained," Bryant assessed. "It was based on the fact that they presumed that the sale of adult sexual enhancement devices was illegal, on no evidence that that was the case. Even more importantly, under our Kansas statute, you can sell sexual devices if they're meant for therapeutic use, and there was no evidence that the items were not being marketed for that use. Our store manager testified that she'd been there for six years lawfully operating, lawfully licensed; husbands and wives and people that were in need of such devices would come on a regular basis and shop."
Murray noted to the Court that similar laws prohibiting adult businesses from advertising have already been struck down in Georgia, South Carolina and most recently in Missouri. He also reminded the Court that the billboards in question contained no sexual words or images of any sort; just "Lion's Den, Adult Superstore, Exit 272," which Murray described as "pure speech and nothing more."
In the complaint which is at the heart of yesterday's hearing, Murray and Bryant charged that the billboard law, Sec. 68-2255 of the Kansas Statutes Annotated (K.S.A.), violates the First and Fourteenth Amendments to the U.S. Constitution, in that the law "operates as an unconstitutional prior restraint on the dissemination of constitutionally protected expression"; is "not narrowly tailored to advance a substantial governmental interest"; "does not further any governmental interest unrelated to the suppression of speech"; is "unconstitutionally overbroad"; "restricts lawful commercial expression"; "was enacted without any valid evidence to support the restrictions it imposes"; "is irrational, arbitrary and capricious"; "operates to chill protected speech"; and "does not leave open ample alternative avenues for protected expression." The suit seeks a declaratory judgment from the Court that K.S.A. Sec. 68-2255 and its sub-parts are unconstitutional.
"As a matter of fact, as we were looking at the ordinance again yesterday, I thought of yet another argument, the 'unbridled discretion' argument that – even though we've talked about it being overbroad, we left out an argument on unbridled discretion of enforcement officers which Mike thinks is probably another good argument we should put in there," Bryant told AVN in an exclusive interview. "One of the conclusions that the attorney general's office suggested was, if you made this political speech, and you said, 'Lion's Den, Exit 162, supports fighting for your constitutional rights' or 'supports the troops' or something like, that would not be advertising for Lion's Den, and so therefore, it would be legal. But that's not what the law says, and that's not a distinction they can make."
The State's response, in its official Answer to the Complaint, has been basically to deny all of the Plaintiff's substantive allegations without responding to any of the merits of their case, though Campbell did claim that the Complaint was invalid because "plaintiff's expression is not entitled to the protection of the First Amendment, because it does not concern lawful activity," and that Lion's Den did not have standing to bring the action in the first place.