BBC Fireworks, Inc. v. State Highway and Transp. Com'n

• Decision Date: 21 April 1992
• Docket Number: No. 73827,73827
• Citation: 828 S.W.2d 879
• Parties: BBC FIREWORKS, INC., d/b/a Fireworks Importers, Ltd., Appellant, v. STATE HIGHWAY AND TRANSPORTATION COMMISSION, Respondent.
• Court: Missouri Supreme Court

Page 879

828 S.W.2d 879

BBC FIREWORKS, INC., d/b/a Fireworks Importers, Ltd., Appellant, v. STATE HIGHWAY AND TRANSPORTATION COMMISSION, Respondent.

No. 73827.

Supreme Court of Missouri,

En Banc.

April 21, 1992.

Rehearing Denied June 2, 1992.

William M. Barvick, Jefferson City, for appellant.

Rich Tiemeyer, Chief Counsel, Kim R. Reid, Asst. Counsel, Mo. Highway & Transp. Com'n, Jefferson City, for respondent.

RENDLEN, Senior Judge.

BBC Fireworks, Inc., d/b/a Fireworks Importers, Ltd. (BBC), appeals from the circuit court's decision affirming respondent Highway and Transportation Commission's (Commission) order that BBC remove two signs located adjacent to Interstate 35 near Eagleville. As BBC contends the Billboard Law, Chapter 226.520, RSMo 1986, under which the signs were ordered removed, is violative of the free speech provisions of Mo. Const. art. I, § 8, the cause falls within our exclusive original appellate jurisdiction. Mo. Const. art. V, § 3. We affirm.

BBC, though principally engaged in the sale of fireworks, also operates a convenience store and Texaco service station. Each of the offending signs was attached to a forty-foot semitrailer adjacent to and within six hundred and sixty feet of Interstate 35 on the west side. The first sign is 3.6 miles north of Route N and the second is approximately three tenths of a mile north of Route N at the Eagleville exit. Both signs read: "Half Price, Fireworks Importers Ltd., Factory Outlet, Eagleville, Mo. Exit," and each displayed a Texaco star, as well as the current gasoline price. On August 11, 1986, the Commission sent BBC notices to remove the two signs, alleging nonconformance with § 226.520, RSMo 1986. ¹ BBC concedes its signs violated the terms of the statute in that they were placed within six hundred sixty feet of the right-of-way on an interstate highway, are visible from the main traveled way, and fall within none of enumerated exceptions. However, consistently arguing the statute violates its right to freedom of expression pursuant to Mo. Const. art. I, § 8, BBC unsuccessfully pursued its administrative remedies and a petition for review, which was denied by the circuit court.

For its sole point on appeal to this Court, BBC reiterates its challenge to § 226.520 as violative of Mo. Const. art. I, § 8, which reads in pertinent part:

That no law shall be passed impairing the freedom of speech, no matter by what means communicated; that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; ... (Emphasis added.)

Without conceding that the statute does not violate the First Amendment to the United States Constitution as applied to the states via the Fourteenth Amendment, BBC argues the state constitutional provision affords broader protection than its federal counterpart. Addressing such contention in State v. Roberts, 779 S.W.2d 576, 579 (Mo. banc 1989), this Court noted that we need not decide "whether the circumference of Mo. Const. art. I, § 8 is identical to that of the First Amendment in all instances." Similarly, we need not reach that issue here, but decide the cause upon principles of Missouri law previously announced.

BBC seizes upon broad language of this Court in Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S.W. 391, 393-94 (1902), and Ex parte Harrison, 212 Mo. 88, 110 S.W. 709, 710-11 (1908) stated at the turn of the century:

That instrument [the Missouri Constitution] simply forbids any law to be passed impairing the freedom of speech, and then gives a general and perpetual guaranty against any interference from any quarter whatever with the freedom of every person "to say, write or publish whatever he will on any subject." Language could not be broader, nor prohibition nor protection more amply comprehensive. Wherever, within our borders, speech is uttered, writing done, or publication made, there stands the constitutional guaranty giving stanch [sic] assurance that each and every one of them shall be free. The legislature cannot pass a law which even impairs the freedom of speech; and, as there are no exceptions contained in the rest of the quoted section, the language there used stands as an affirmative prescription against any exception being thereto made, as effectually as if words of negation or prohibition had expressly and in terms been employed.

Marx & Haas Jeans Clothing Co. v. Watson, 67 S.W. at 393-94,

If a publication is neither blasphemous, obscene, seditious, or defamatory, then, under the Constitution of this state, no court has the right to restrain it, nor the legislature the power to punish it ... Anything which makes the exercise of a right more expensive or less convenient, more difficult or less effective, impairs that right ... " 'Impair' means to make worse; to lessen the power; to weaken; to enfeeble; to deteriorate."

Ex parte Harrison, 110 S.W. at 710-11 (quoting Gladney v. Sydnor, 172 Mo. 318, 72 S.W. 554 (1903)). These cases may be distinguished from that at bar on grounds that the restrictions imposed in those cases involved content-based limitations on speech. Further, later cases have acknowledged that even under our Missouri constitutional provision:

The right of free speech is not an absolute right at all times and under all circumstances. The right of freedom of speech is subject to the state's right to exercise its inherent police power. (Emphasis added.)

State v. Roberts, 779 S.W.2d 576, 579 (quoting State v. Smith, 422 S.W.2d 50, 55 (Mo. banc 1967)). ²

Accordingly, we conclude the Billboard Law (§ 226.520) is a valid exercise of the state's police power and hence a permissible infringement on BBC's right to freedom of expression. The Missouri statute was enacted pursuant to 23 U.S.C. § 131, which requires the states to provide effective control of outdoor advertising and authorizes the Secretary of Transportation to withdraw a portion of federal highway funding as a penalty for noncompliance. ³ The stated purpose of the Billboard Law is as follows:

The general assembly finds and declares that outdoor advertising is a legitimate commercial use of private property adjacent to the interstate and primary highway systems and that it is necessary to regulate and control same to promote highway safety, to promote convenience and enjoyment of highway travel, and to preserve the natural scenic beauty of highways and adjacent areas. § 226.500, RSMo 1986 (emphasis supplied).

In Osage Outdoor Advertising v. Missouri Highway and Transportation Commission, 680 S.W.2d 164, 170 (Mo.App.1984), the court summarized the scenic purposes of the statute:

The underlying rationale for allowing billboards in unzoned locations with commercial or industrial activity is that the natural scenic beauty of such an area is already disrupted by the activity, and, therefore, no preservation purposes would be advanced by banning billboards in those locations. But, where an activity is more than 660 feet from the right-of-way, the natural state of an area adjacent to the interstate highway has not been disrupted. Similarly, if the activity is within the 660 foot distance but it is not a visible and recognizable commercial or industrial activity, the natural state of the area is also not disrupted.

As stated in Roberts, 779 S.W.2d at 579, the right to "free speech" under Mo. Const. art. I, § 8, is not absolute at all times and under all circumstances, but is subject to the state's inherent right to exercise its police power. In City of Independence v. Richards, 666 S.W.2d 1, 6 (Mo.App.1983), the court, though not ruling on the issue, noted "that the Missouri decisions tend to the principle that aesthetic consideration alone suffices for the exercise of the police power," ⁴ and in University City v. Diveley Auto Body Co., 417 S.W.2d 107, 110 (Mo. banc 1967), we upheld the billboard provisions of the city zoning ordinance against state and federal constitutional challenges based on the rights to due process, equal protection, and freedom of speech, holding "that the billboard ordinances were a valid and reasonable exercise of the police power." See also Deimeke v. State Highway Commission, 444 S.W.2d 480 (Mo.1969) (junkyard licensing statute upheld as valid exercise of police power); St. Louis Gunning Advertisement Co. v. City of St. Louis, 235 Mo. 99, 137 S.W. 929 (1911); Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099 (1912); St. Louis Poster Advertising Co. v. City of St. Louis, 195 S.W. 717 (Mo. banc 1917) (local billboard ordinances upheld as...