Suit challenges state's new racy billboard ban

KANSAS CITY, Mo. -- The owners of a Kansas City strip club and a company that operates adult bookstores along Interstate 70 are suing the state over its ban on sexually oriented billboards near state highways.

The law was signed by Gov. Holden in June and took effect Saturday, a day after the lawsuit was filed in U.S. District Court in Kansas City. It prohibits such signs within one mile of state highways and gives businesses three years to bring existing billboards into compliance.

Backers of the law said it would help reduce crime and protect children from being exposed to sexually oriented businesses. But a lawsuit, filed by Gala Entertainment of KC Inc. and Passions Video Inc., claims the law violates the companies' First Amendment rights to free speech.

"When I testified in Jefferson City that they couldn't single these businesses out, the comment made to me was, 'We don't care if it's constitutional or not. We're sending a message,'" said the plaintiffs' attorney, Dick Bryant.

The law, Bryant said, "has so many flaws that those who voted in favor of it should be embarrassed over failing in their duty to uphold the Constitution."

Gala Entertainment owns the Satin Dolls strip club near I-70 in northeast Kansas City. Passions Video, based in Boonville, owns one store there and another in Marshall Junction.

Attorney General Jay Nixon, the only named defendant, acknowledged that the lawsuit presented a challenge but said he would defend the law vigorously.

"The courts are going to give us some important guidance as to the First Amendment issues involved," Nixon said. "I think the legislature went about this task with an honorable intention. The courts will tell us whether this is the method to succeed."

The state will have to prove it had a compelling interest in restricting expression, Nixon said.

"The courts make it especially challenging for us to uphold that level of regulation," he said.

Violation of the law is a class C misdemeanor, punishable by 30 days in jail. Each week of violation is considered a separate offense.

The bill was sponsored by Sen. Matt Bartle, R-Lee's Summit.

"We shouldn't have a situation where we have to explain to our children what 'XXX' means or what an 'adult toy' is," Bartle said earlier this year. "It is disgusting. It is a sign of the decay up and down our roadways."

Gene Gruender, president and majority owner of Passions, called Bartle "some extremist who managed to use political maneuvering to get it through the legislature."

Bryan also scoffed at the state's rationale.

"During the testimony, I listened to the legislators saying how, when they drive down to Jefferson City, they see these signs and their kids start asking them questions," he said. "Well, you see lingerie signs and suntan signs and 'abortion kills' signs that have more skin and scantily clad people for businesses that have nothing to do with adult entertainment."

New Jersey has a similar billboard law, which was upheld by that state's Supreme Court in 1998.

Also in 1998, Georgia's Supreme Court struck down that state's ban on off-property billboard advertising by nude clubs. The state had said the law was meant to cut down on traffic hazards, but the court ruled it went too far because it banned words advertising a business' location as well as prohibiting provocative images.

The Missouri law applies to any billboard advertising a business where more than 10 percent of display space is used for sexually oriented materials. Those are defined as "any textual, pictorial or three dimensional material that depicts nudity, sexual conduct, sexual excitement or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors."

Businesses located within one mile of a highway are allowed two on-site signs: One warning minors to keep out and the other with the business' name, address, telephone number and hours of operation. David Achtenberg, a constitutional law professor at the University of Missouri-Kansas City School of Law, said the law likely would be struck down.

"Let's put it this way," he said. "I would not sell billboard stock short based on the probability of this statute being held constitutional."