Sex on the side of the highway

Do sexually oriented businesses have a First Amendment right to advertise on signs that are visible from a highway?

U.S. District Judge Gary Fenner of Kansas City just ruled they don't. He rejected a lawsuit from John Haltom, whose ten stores sell sexy lingerie, sex toys, and adult videos in six states. Mr. Haltom said Missouri's law, which bans billboards for sexually oriented businesses within a mile of a highway, infringed on his right of free speech.

State Senator Matt Bartle applauded the decision but said he expects more challenges to the law.

In other words, Judge Fenner's decision settled nothing. A panel of appeals court judges may decide the issue differently. The full appeals court may overrule their decision. And the U.S. Supreme Court may ultimately hear the case and decide it with a five to four vote that only means the next Supreme Court nominee will have to duck questions about it.

Welcome to the logical conclusion of the Supreme Court's 80-year project of applying the Bill of Rights to the states. Nobody really knows what rights we have or don't have against state laws that limit the freedoms guaranteed by the first ten amendments to the U.S. Constitution.

That's because the Bill of Rights was never intended to restrict the powers of state governments. Believe it or not, the framers of the Constitution meant for the states to have the power to restrict freedom of speech and the press.

It was 1925 when the U.S. Supreme Court first began to talk about rights that were so "fundamental" to the concept of due process of law that the states were required to respect them under the Fourteenth Amendment, which bars any state from denying due process of law to any person.

The Fourteenth Amendment was ratified in 1868. If it was intended to apply the Bill of Rights to the states, it's odd that nobody knew this until everybody who voted on the amendment had died.

Just the same, the Bill of Rights applies to the states today because the Supreme Court says fundamental rights cannot be infringed by the states without a compelling reason.

And that is why nobody knows what rights we have or don't have against state laws that limit freedom of speech.

Is commercial speech a "fundamental" right? Let's say it is (though the Supreme Court may decide it isn't). Is Missouri's reason for banning sexy billboards "compelling" or is it simply a rational judgment made by state lawmakers? "Rational" isn't good enough when you want to infringe a "fundamental" right. The reason has to be "compelling."

Compelling to whom?

To whichever judges are hearing the case.

You see the problem.

Under the original understanding of the Constitution, the states were not bound by the First Amendment. So they were free to set their own policies (without bothering everybody in the other states) on Ten Commandments displays, prayer in schools, panhandling, loitering, nude dancing, and street protests. State legislatures were free to pass laws outlawing homeless street encampments, door-to-door proselytizing, and leaflets under windshield wipers. State school officials were free to suspend students who shouted "Heil, Hitler!" in the corridors or wore tee-shirts with messages that teachers found to be disruptive in the classroom.

No more.

The states are now subject to perpetual second-guessing by federal judges. No matter what anybody decides at any time, the only true answer is the one given by the Magic 8-Ball:

"Ask again later."


Copyright 2006

Editor's note: Read more about it in the earlier post, "The cat, the bag and Justice Scalia." For the complete story, including source notes and a bibliography, see the appendix to The 37th Amendment, "How the First Amendment Came to Protect Topless Dancing."

.