The US Court of Appeals for the Sixth Circuit on Tuesday upheld a lower court ruling that Kentucky’s Billboard Act is unconstitutional.

The Billboard Act prohibits off-site advertisements that are not securely affixed to the ground, attached to a mobile structure, and for which no permit has been obtained. Lion’s Den Adult Bookstore, which is located near the interstate highway in Upton, Kentucky, has a billboard attached to a semi-trailer on an adjacent piece of property. The Kentucky Department of Transportation saw the sign as in violation of the Billboard Act and ordered Lion’s Den to remove it. Lion’s Den instead sued the state in federal district court, claiming the Billboard Act violated the First Amendment. The district court agreed and issued an injunction against enforcement of the Act.

In affirming the district court ruling, the appeals court relied on the decision in Reed v. Town of Gilbert, stating that, “What matters under Reed is whether a regulation’s restrictions are content based. If yes, strict scrutiny applies. If no, a less rigorous form of review applies.” The court held that, because the Act differentiates between billboards that advertise off-site activities, which must adhere to the regulations, and billboards that advertise on-site activities, which do not have to adhere to the same regulations, “the Act amounts to a content-based regulation of speech.” Since strict scrutiny applies, the Act could only survive if the state was able to show that the Act was narrowly tailored to further a compelling government interest, and the state’s arguments about aesthetics and safety did not meet that standard.