Judge Walker's decision about the Lion's Den Adult Superstore billboard on I-65

Judge Justin Walker of the Western District of Kentucky was fairly criticized a few weeks ago for a lengthy and possibly unnecessary judicial disquisition on the law of religious freedom. Walker currently has a high profile because of a combination of his age, his apparent jurisprudential outlook, and his pending nomination to the D.C. Circuit. With a big target on his back, it's unsurprising that not all of the criticisms of him have been fair. But perhaps some are getting through.

Last week, Judge Walker held the Kentucky Billboard Act unconstitutional. Walker's opinion in L.D. Management Company v. Thomas (W.D. Ky. April 24, 2020) cannot be accused of running too long. It takes just six double-spaced pages for Walker to dispatch Kentucky's billboard law. 

The opinion is a bit too quick and too confident at points, at least for my taste. Near the end, for example, Judge Walker suggests in passing that Kentucky Transportation officials "may have selectively policed the particular billboard in this case." The opinion states: 

Lion's Den told Kentucky about other offending billboards on mobile structures and even provided photos of them. This evidence – which Kentucky filed in support of its summary judgment motion–raises a suspicion that Kentucky specifically targeted Lion's Den and ignored other billboards that broke its rules. If so, this selective enforcement is viewpoint discrimination, an even more 'egregious' violation of the First Amendment. 

This seemed a bit gratuitous, especially for an opinion that otherwise moved with such economy of expression. So I pulled the evidence Walker seemed to be referring to. It was with Kentucky's summary judgment motion, but it was the _plaintiff's_ answers to interrogatories from the administrative enforcement action. And the relevant interrogatory answer included information that undercuts plaintiff's viewpoint discrimination claim. The answer states that counsel shared the photographs with the Transportation Cabinet, and then states, "It was only after that information was provided that the other signs began to be removed." (21-3, p. 142, Answer to Interrogatory 24) (emphasis added). This is pretty weak sauce, and reads a bit like piling on the defense.

On the merits, Judge Walker's decision very well may be correct. As he explains in his opinion, the Sixth Circuit last September held unconstitutional a Tennessee billboard law that the appellate court described as "identical" to Kentucky's. See Thomas v. Bright, 937 F.3d. 721, 732 (6th Cir. 2019). As a judge on a federal district court hierarchically inferior to the Sixth Circuit, Judge Walker is bound by the Sixth Circuit's ruling in Thomas. That decision was issued a couple of months before the defense filed for summary judgment. That filing did not mention Thomas, but instead relied heavily an a prior Sixth Circuit decision that theThomas panel held to have been overruled by the Supreme Court in Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). That was a big omission.

If Kentucky appeals Judge Walker's decision, though, the appeal will not necessarily be DOA notwithstanding. The crux of Judge Walker's reasoning was that the Kentucky Billboard Act's distinction between signs advertising on-premises activities and those advertising off-premises activity rendered the law "content-based" and therefore subject to a strict First Amendment test. That determination tracked the Sixth Circuit's reasoning in Thomas. But Judge Walker also included a discussion of severability, concluding that Kentucky's on-premises/off-premises distinction was not severable from the other provisions of the Act and implementing regulations that the billboard at issue violated. The severability of a state law is a question of state law. The Sixth Circuit's severability discussion in Thomas is therefore not determinative of the severability even of an identically worded Kentucky law. For complicated reasons that don't belong in this already lengthy blog post, the inclusion of severability might not have been necessary either to the Sixth Circuit's decision in Thomas or Judge Walker's decision in this case. But there's more than enough to argue about that an appeal by Kentucky would not be futile.

Finally, the Sixth Circuit's decision in Thomas v. Bright might itself be wrong. That's not something Judge Walker could decide for himself, but the freedom that he took in deciding what issues to discuss might have been better channeled toward considering the nature and limits of the Sixth Circuit's holding in Thomas and the facts of the case before him rather than on other aspects of the opinion that he did include.