The drive down I-65 from the Midwest to Florida is not known for being a particularly interesting one. Following a seemingly interminable stretch down the length of Indiana, you finally pass Louisville, Kentucky. But then you see something different – a large sign painted on the side of a parked semi-trailer that reads: “Lion’s Den Adult Superstore Exit Now.”
Some people got their you-know-whats in a bunch about that, so the town of Upton passed an ordinance to get rid of it. The ordinance prohibited off-premises signs on non-permanent structures. That’s the ticket. The Lion’s Den filed suit against the town, claiming that their right of free speech had been violated. They won on the District Court Level and the town appealed to the 6th Circuit.
The Court began by describing the Lion’s Den business in a marvelously understated way. “Located just off Exit 251 on Interstate 65, the store sells ‘books,’ ‘magazines,’ and other items not worth belaboring.”
The Court also noted that “Over half of its business comes
from interstate drivers.” Good business model. People who wouldn’t dream of
entering such a place in their hometown could rationalize that “nobody knows us
in Kentucky.” (As a personal note, I think the Court missed an excellent opportunity
to reference “trailer for sale or rent” from the Johnny Rivers song.)
The unanimous three-judge opinion took only six pages to affirm the lower court decision that shut down the ordinance. Opining that limiting free speech is greatly discouraged (and citing prior case law), the court held that an ordinance making a distinction between signs located on premises and those that were off-premises was arbitrary. Vague arguments about “public safety” were simply not enough to prohibit this sign and limit the plaintiff’s right to free speech.
So the sign remains. Remember to park in the back.
An interesting aside: the District Court judge and two of the three appellate court judges were appointed by Donald Trump.
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