Here’s the argument audio from the 8th Circuit’s alcoholic beverage advertising case. Advertisers won this by a mile. Oh, and did I mention there’s evidence in the record that 3-tier is useless and doesn’t protect the public?
You’ll recall this is the second appeal in this matter where a group of broadcasters, along with a bar, and a grape farmer brought a First Amendment challenge to Missouri’s prohibitions on truthful alcohol advertising.They argued that Missouri’s laws and regs restrict the manner and methods and truthful content of their alcohol advertising. They won in the district court and the state appealed arguing all along that tied-house restrictions trumped the First Amendment and mandated restrictions on alcohol advertising – apparently forgetting or ignoring cases like Reuben and 44 Liquormart.
This is another of those cases showing how states will generally get away with improper restrictions and regulations on the activities of the alcohol industry under the guise of “three-tier” and “tied-house” until they’re actually forced to prove that their “just-so” claims about what a regulation or statute is supposed to accomplish actually accomplishes that goal – or that the goal isn’t constitutionally prohibited. Creative lawyers have been bringing down alcohol regulations left and right these days.
You can listen to the full audio from yesterday’s 8th Circuit oral argument here:
There are some interesting points in this argument and some wonderful inquiries from the bench. The argument makes it painfully obvious that the state didn’t carry its burden here.
The argument starts with a judge telling the state they’ve conceded that this is advertising and therefore commercial speech after the state initially said it wasn’t commercial speech… and just keeps getting better.
The judges challenge the state’s arguments that mandating 2, 3, or 4 retailers get named in any advertisement by a manufacturer or wholesaler about pricing if they name at least 1 retailer somehow reduces consumption: “show me the evidence” “we do things based on evidence”
The judges take note of the scientific evidence that overall consumption has not increased with an increase in advertising these past many years. Overall consumption is down across the country and advertising is very much up.
Around 26:50 you’ll hear the attorney for the advertisers discussing evidence from an expert that pre-prohibition problems that led to the three-tier system do not exist anymore, THEY AREN’T EVEN PROBLEMS TODAY. And if anything, tied houses like brewpubs and winery restaurants function better and more responsibly than retailers not owned by manufacturers. You’ll hear similar stuff at 32:45 about how you are 100 percent safe on 1 tier grounds and three-tiers is useless.