TOPEKA, Kan. (AP) — A Kansas law restricting roadside signs for strip clubs and sex shops is unconstitutionally broad, the lawyer for an Abilene store said Thursday in arguments before a federal judge.
But an attorney representing the state countered that because some items sold at the Lion's Den Adult Superstore are obscene, its signs along Interstate 70 promote illegal activity.
Lion's Den is seeking a preliminary injunction to block enforcement of a law requiring it to remove three large billboards after July 1. The billboards are located along I-70 in Dickinson, Geary and Russell counties.
U.S. District Judge Julie A. Robinson gave no indication at the end of Thursday's hourlong hearing on when she would rule on Lion's Den's request. The company wants the law placed on hold while its challenge is fully litigated.
Adopted in 2006, the law says any sign advertising an adult cabaret or sexually oriented business must be at least one mile off a highway. Signs can be no larger than 40 square feet and show only the name, location, phone number and operating hours of such a business.
The law said any signs already in place in 2006 had three years to conform or be removed.
Lion's Den argued it needs its three billboards to attract business.
"These billboards are very important. We rely heavily on interstate traffic," said Sabrina Breeden, manager of Lion's Den, which opened in 2003 at Exit 272 just north of I-70.
Lion's Den attorney Michael Murray, of Cleveland, Ohio, said there's nothing illegal about the store's merchandise and that it should be allowed to keep the existing billboards.
Murray said similar laws banning only adult stores from any advertising have been struck down in Georgia, Missouri and South Carolina as improper restraints on commercial speech under the First Amendment to the U.S. Constitution.
Breeden said the Lion's Den billboards have no pictures or drawings and merely advertise the store's name, location and logo.
Murray said the company "has a lawful constitutional right to operate a business. It's vital to be able to communicate to customers and potential customers.
"These messages contain words only. There are no erotic or suggestive images. It's constitutionally protected information," he said.
Lawrence attorney Terrence Campbell, representing the attorney general's office, said the state's obscenity law has been reworked by the Legislature since it was declared unconstitutional by a state judge in 2005.
"The statute prohibits signs for that type of business," Campbell said.
Murray said the U.S. Supreme Court has established a legal test to determine whether such signs are within the law. He said the first thing is the signs must deal with legal activities and the Lion's Den signs meets that test.
But Campbell argued that because some of the items sold are considered obscene and thus illegal under state law, then the signs are promoting illegal activities.
"The obscenity statute focuses on the intent of the seller," he said.
In her testimony, Breeden said some of the items are designed to "enhance a healthy interest in sex."
The law says a material is obscene if, applying contemporary community standards, it appeals to the prurient interest, is patently offensive and lacks serious literary, educational, artistic, political or scientific value.
In 2005, a state judge dismissed 10 misdemeanor complaints against Lion's Den, saying the state's obscenity law was flawed. The store had been the focus of an intense fight with a community group that was trying to get it closed.
At times, members of the group, Citizens for Strengthening Community Virtues, camped out at the store, waving signs and warning truckers that their bosses would be notified if they stopped.
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The case is Abilene Retail 30 Inc., vs. Stephen N. Six, in has official capacity as Kansas attorney general, No. 09-CV-2195.
