The city has received complaints since the sign went up. But the government cannot - and should not - do anything. The city regulates aspects such as sign location and construction. The Iowa Department of Transportation has jurisdiction over signs viewable from a highway, but can take issue with the content only if it's advertising something illegal. If the women on the sign were actually naked, the ad could be violating state obscenity laws.
Rightly, that's as far as government can reach.
Hmm. . . not so much.
Even if the author had no legal knowledge, a quick thought or two should've tipped them off that the analysis was a tad more complex. If there were no restrictions on advertising content unless it's illegal, why is it you don't see cigarettes advertised on television?
Commercial speech is traditionally afforded less protection than other speech under the first amendment. As stated in METROMEDIA, INC. v. SAN DIEGO, 453 U.S. 490 (1981):
The extension of First Amendment protections to purely commercial speech is a relatively recent development in First Amendment jurisprudence. Prior to 1975, purely commercial advertisements of services or goods for sale were considered to be outside the protection of the First Amendment.
The seminal case discussing advertising speech and the first amendment remains CENTRAL HUDSON GAS & ELECTRIC CORP. V. PUBLIC SERVICE COMM'N, 447 U.S. 557 (1980). In it, the Court held:
"The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation."
It then adopted a four-part test for determining the validity of government restrictions on commercial speech as distinguished from more fully protected speech:
(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it
(2) seeks to implement a substantial governmental interest,
(3) directly advances that interest, and
(4) reaches no further than necessary to accomplish the given objective.
The test isn't "if it's not illegal, it must be valid." If the subject matter isn't illegal, the government can still regulate it if it shows a substantial interest and the regulation is narrowly tailored to that interest.
Could the test work to prohibit the billboard in Des Moines? It depends. Does it present a traffic hazard - have accidents been caused by motorists slamming on the brakes to get a better look at the crotch shot? If so, could you tailor a regulation so narrowly as to accomplish only the avoidance of a traffic hazard? Another possibility is to prohibit billboards altogether through zoning ordinances or state law, Metromedia involved just such a case.
The "vice" cases are more rare and more difficult. A recent example I dug up was 44 LIQUORMART, INC. v. RHODE ISLAND. There, the government tried to ban all advertising of alcohol pricing, attempting to justify the prohibition based on the the "promotion of temperance." The Court didn't buy it:
"In evaluating the ban's effectiveness in advancing the State's interest, we note that a commercial speech regulation "may not be sustained if it provides only ineffective or remote support for the government's purpose." Central Hudson, 447 U.S., at 564 . For that reason, the State bears the burden of showing not merely that its regulation will advance its interest, but also that it will do so "to a material degree." Edenfield, 507 U.S., at 771 ; see also Rubin v. Coors Brewing Co., 514 U.S., at ___ (slip op., at 8-9). The need for the State to make such a showing is particularly great given the drastic nature of its chosen means - the wholesale suppression of truthful, nonmisleading information. Accordingly, we must determine whether the State has shown that the price advertising ban will significantly reduce alcohol consumption.
We can agree that common sense supports the conclusion that a prohibition against price advertising, like a collusive agreement among competitors to refrain from such advertising, 15 will tend to mitigate competition and maintain prices at a higher level than would prevail in a completely free market. Despite the absence of proof on the point, we can even agree with the State's contention that it is reasonable to assume that demand, and hence consumption throughout the market, is somewhat lower whenever a higher, noncompetitive price level prevails. However, without any findings of fact, or indeed any evidentiary support whatsoever, we cannot agree with the assertion that the price advertising ban will significantly advance the State's interest in promoting temperance. [ 44 LIQUORMART, INC. v. RHODE ISLAND, ___ U.S. ___ (1996) , 18]
Although the record suggests that the price advertising ban may have some impact on the purchasing patterns of temperate drinkers of modest means, 829 F. Supp., at 546, the State has presented no evidence to suggest that its speech prohibition will significantly reduce market-wide consumption. 16 Indeed, the District Court's considered and uncontradicted finding on this point is directly to the contrary. Id., at 549. 17 Moreover, the evidence suggests that the abusive drinker will probably not be deterred by a marginal price increase, and that the true alcoholic may simply reduce his purchases of other necessities."
Thus, in order for Des Moines to ban the billboard as a "vice" leading to promiscuity, degeneration of the neighborhood, corruption of children, etc., it would have to acquire concrete evidence that the billboard would lead directly to those problems. Unless I'm mistaken, I don't think such evidence exists.
That, in a simplified nutshell, is the reason why the billboard will likely be left alone. For what it's worth, here's the pic:
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