The First Amendment Saves Beer?
Well, not really. But it did save a beer label.
Flying Dog Brewery, located in Frederick, Maryland, is known for its unique beer names and labels with pictures drawn by artist Ralph Steadman. They are often provocative and eye-catching, which is probably what Flying Dog wants. Like most states, North Carolina regulates the sale and promotion of alcoholic beverages. Such regulation includes the advertising and labeling of beer. You can probably see where this is going: North Carolina took umbrage with one of Flying Dog’s labels and rejected its use. Apparently, the label was “in bad taste” and “seen as inappropriate to many here.” The Flying Dog label depicted a nude cartoon figure standing next to a campfire.
Refusing to back down, Flying Dog sued on First Amendment grounds. The federal court in North Carolina agreed with Flying Dog and ruled that North Carolina’s regulation was an impermissible infringement on Flying Dog’s First Amendment rights.
The regulation at issue is as follows:
An advertisement or product label on any alcoholic product sold or distributed in this State shall not contain any statement, design, device, or representation [which] depicts the use of alcoholic beverages in a scene that is determined by the [ABC] Commission to be undignified, immodest, or in bad taste.
Since Flying Dog used the label as part of an advertisement for selling a particular type of beer (a commercial activity), it involved commercial speech, which is afforded less First Amendment protection. In order to evaluate whether a state action violates the First Amendment in regard to commercial speech, a court must first examine whether
• The speech concerns lawful activity and is not misleading; and
• The governmental interest in regulating the speech is substantial.
If both parameters are met, a court next determines if
• The regulation directly advances the governmental interest asserted; and
• Whether it is more extensive than is necessary to serve that interest.
Since the Flying Dog label concerns lawful activity and was not misleading, the Court focused on the remaining requirements. While North Carolina’s proffered interest in keeping minors safe from profane and sexually explicit modes of advertising (and, more generally, the well-being of minors) is substantial, the Court nevertheless ruled that the regulation was far too broad and restricted permissible speech by prohibiting speech the state determines is “undignified, immodest, or in bad taste.” Put simply, the regulation goes far beyond the profane and sexually explicit.
The Court’s closing comments bear noting and are worth remembering:
[T]he Supreme Court has recently reaffirmed ‘the bedrock First Amendment principle [that] Speech may not be banned on the ground that it expresses ideas that offend.’
[W]hen the government's substantial interest is framed as ‘preventing speech expressing ideas that offend,’ such an idea ‘strikes at the heart of the First Amendment.’
Flying Dog’s statement concerning the ruling can be found here and a blog post about censorship can be found here.
Both are worth a read.