Beer and the First Amendment – how Santa’s Butt, a Bad Frog, and a Raging Bitch have helped free expression in liquor labeling and advertising.

This week we’ve been writing about the beauty that is the intersection of alcoholic beverage law and the First Amendment. We’ve covered two of the cases from the 1990’s that brought the Supreme Court’s jurisprudence on commercial speech to the drinks business.

You can read the post on Rubin v. Coors Brewing, here – finding that truthful information like the alcohol content of your beverage couldn’t be blocked based on weak and unsupported claims from the Government that a law banning the advertising and labeling of alcohol content protected the public from brewers looking to engage in “strength wars.” You can read the post on 44 Liquormart v. Rhode Island here – finding that Rhode Island’s blanket ban on advertising liquor prices was not proven to decrease consumption and certainly wasn’t narrowly tailored to that goal – what it did to was suppress truthful information that consumers could use to make informed decisions. As Justice Thomas pointed out – it was a law grounded in accomplishing a State goal through keeping the public in the dark – suppressing truthful information.

Today we’re covering a particularly attendant results of these good cases – the State, and Federal District and Appellate Court decisions and suits that have arisen in the 20 or so years following the mid-90s rulings in Rubin and 44 Liquormart, which have struck down some State and Federal claims that obscenity or vulgarity can be adequate justifications for refusing to register a label or allow the sale of an alcoholic beverage.

Together, they amount to a steady march in liquor advertising and sales and marketing that has pressed against State and Federal restrictions emplaced by authorities to promote temperance or enforce a societal value, which, in the end, when finally brought into the light of the First Amendment, are shown as violations of the Constitutional guarantee of free expression.

Our first case, Bad Frog Brewery, Inc. v. New York State Liquor Authority involved the challenge to a liquor control authority’s suppression of a label it found offense. Decided in 1998 by the Second Circuit, the Court of Appeals considered a ruling by a Federal District Court to allow the New York State Liquor Authority to reject the state filing of a label (and thereby the sale of the attendant beer) which prominently featured a frog flipping off whomever might be walking by…

Initially, the Court determined that, regardless of Bad Frog’s proffered explanation that the frog was social commentary, the fact that it was on a beer label made it commercial speech. Applying the Central Hudson factors in determining whether this was protected speech:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.  Next, we ask whether the asserted government interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than is necessary to serve that interest.

The Court concluded that the activity was lawful and not deceptive (just offensive) and that the State’s two proposed interests (1) “protecting children from vulgar and profane advertising” (they might see this frog in the aisle of a grocery store); and (2) “acting consistently to promote temperance” were substantial interests for the purposes of the Central Hudson analysis.

The Court went on to analyze whether barring the label from registration directly advanced those interests and found it did not. In holding that the attempt to shield children from vulgar displays was mistakenly inept, the Court reasoned:

In the pending case, NYSLA endeavors to advance the state interest in preventing exposure of children to vulgar displays by taking only the limited step of barring such displays from the labels of alcoholic beverages.   In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children’s exposure to such displays to any significant degree.

We appreciate that NYSLA has no authority to prohibit vulgar displays appearing beyond the marketing of alcoholic beverages, but a state may not avoid the criterion of materially advancing its interest by authorizing only one component of its regulatory machinery to attack a narrow manifestation of a perceived problem.   If New York decides to make a substantial effort to insulate children from vulgar displays in some significant sphere of activity, at least with respect to materials likely to be seen by children, NYSLA’s label prohibition might well be found to make a justifiable contribution to the material advancement of such an effort, but its currently isolated response to the perceived problem, applicable only to labels on a product that children cannot purchase, does not suffice. … Our point is that a state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity.

The District Court ruled that the third criterion was met because the prohibition of Bad Frog’s labels indisputably achieved the result of keeping these labels from being seen by children.   That approach takes too narrow a view of the third criterion.   Under that approach, any regulation that makes any contribution to achieving a state objective would pass muster.   Edenfield, however, requires that the regulation advance the state interest “in a material way.”   … The prohibition of alcoholic strength on labels in Rubin succeeded in keeping that information off of beer labels, but that limited prohibition was held not to advance the asserted interest in preventing strength wars since the information appeared on labels for other alcoholic beverages.   The valid state interest here is not insulating children from these labels, or even insulating them from vulgar displays on labels for alcoholic beverages;  it is insulating children from displays of vulgarity.

In holding that the stated goal of temperance was not advanced by limiting an offensive frog on a label, the Court found:

NYSLA maintains that the raised finger gesture and the slogan “He just don’t care” urge consumers generally to defy authority and particularly to disregard the Surgeon General’s warning, which appears on the label next to the gesturing frog.  … NYSLA also contends that the frog appeals to youngsters and promotes underage drinking.

The truth of these propositions is not so self-evident as to relieve the state of the burden of marshalling some empirical evidence to support its assumptions.   All that is clear is that the gesture of “giving the finger” is offensive.   Whether viewing that gesture on a beer label will encourage disregard of health warnings or encourage underage drinking remain matters of speculation.

So the Court found that  neither of the stated interests was materially affected by the regulation, such that banning the Frog didn’t amount to curbing children’s exposure to vulgarity not did it amount to keeping people from drinking when they weren’t supposed to.

Moreover the Court also held that the outright ban on the Frog wasn’t narrowly tailored enough to accomplish those goals. Pay attention to the fact that this notion of protecting children wasn’t rejected, the Court simply said it wasn’t done right here. The notion that labels might harm children is something that will appear again and again and State advanced just-so-story arguments about why restrictions on the content of labels should be upheld in spite of a right to free speech.

Here’s what the Court said about narrowly tailoring, noting that many different actions to accomplish the same goals were proposed by the brewery which would be more narrowly tailored to achieve the goals advanced by the State.

In this case, Bad Frog has suggested numerous less intrusive alternatives to advance the asserted state interest in protecting children from vulgarity, short of a complete statewide ban on its labels.   Appellant suggests “the restriction of advertising to point-of-sale locations;  limitations on billboard advertising;  restrictions on over-the-air advertising;  and segregation of the product in the store.”   …  Even if we were to assume that the state materially advances its asserted interest by shielding children from viewing the Bad Frog labels, it is plainly excessive to prohibit the labels from all use, including placement on bottles displayed in bars and taverns where parental supervision of children is to be expected.   Moreover, to whatever extent NYSLA is concerned that children will be harmfully exposed to the Bad Frog labels when wandering without parental supervision around grocery and convenience stores where beer is sold, that concern could be less intrusively dealt with by placing restrictions on the permissible locations where the appellant’s products may be displayed within such stores.   Or, with the labels permitted, restrictions might be imposed on placement of the frog illustration on the outside of six-packs or cases, sold in such stores.

NYSLA’s complete statewide ban on the use of Bad Frog’s labels lacks a “reasonable fit” with the state’s asserted interest in shielding minors from vulgarity, and NYSLA gave inadequate consideration to alternatives to this blanket suppression of commercial speech.   Cf. Bolger, 463 U.S. at 73, 103 S.Ct. at 2883-84 (“[T]he government may not ‘reduce the adult population ․ to reading only what is fit for children.’ ”)

There have been a host of other beer label cases, all dismissed. Notably, in a case brought by Maine against Shelton Brothers back in 2006, the ACLU became involved on Shelton Brothers behalf when Maine’s liquor authority banned the Santa’s Butt label and beer along with a few other labels like Brasserie La Choulette’s Les Sans Culottes.

Taken by Robert Occhianlini

In the face of opposition from the ACLU and a lawsuit over the abridgment of free speech, the Attorney General of Maine ordered the liquor authority’s decision reversed realizing that the failure to register the label likely violated the First Amendment.

And understanding that claims about propriety, or decency, or vulgarity don’t fly is a trend.

Here’s another, back in 2012, we wrote about a Sixth Circuit case involving Flying Dog Brewery’s “Raging Bitch” label where Michigan was slammed for trying to ban the label.

Interestingly, in that case, Michigan advanced an argument about sexism and racism, alleging that  it’s Liquor Control Commission could reject any beer label “that is deemed to promote violence, racism, sexism, intemperance, or intoxication or to be detrimental to the health, safety, or welfare of the general public.”

The Court noted that by 2009 when the dispute was going on, no one should have even contemplated that this kind of censorship was proper:

“By the time the Administrative Commissioners banned Flying Dog’s beer label in 2009, the clear line of Supreme Court commercial speech precedents, coupled with our own decision in (an unrelated case) … should have placed any reasonable state liquor commissioner on notice that banning a beer label based on its content would violate the First Amendment …,”

Taken in light of other outstanding restrictions in the FAA and federal and State regulations like not being able to show the American Flag or use insignia’s or crests, or just plain outright restrictions on “obscene” labeling or advertising, you can bet that someone, somewhere will be challenging a label rejection or refusal to register on these very grounds – in spite of the wide plethora of cases striking down these regulations that have been decided since Rubin and 44 Liquormart.