from the it's-just-a-penis-guys dept
Back in September we wrote about a lawsuit between Flying Dog Brewery and the state of North Carolina over the latter’s Alcohol Beverage Control Board (ABC Board) denying a beer label for use within the state. The ABC Board refused to certify the label for use on the grounds that it was vulgar and offensive, especially to minors. With that, Flying Dog couldn’t use the label at all, anywhere in North Carolina. Notably, every other state had allowed the label to be used. So what was so offensive that North Carolina had to take this stand? See for yourself.
Figure it out yet? Zoom in on the image. Like, way in. See that little dangly thing hanging between the legs? The ABC Board contends that it’s a penis. Flying Dog made some noises about how it was actually a tiny tail… but c’mon guys, it’s a man-sausage. We all know this.
Still, it turns out that free speech is actually a thing, so Flying Dog filed suit against the state on First Amendment grounds. Both sides filed for summary judgement. The ABC Board contended it applied the following statute in order to protect children from being ambushed by the offensive existence of penises.
The rule provides that “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”.
It’s somewhat hard to imagine a governmental regulation more at direct odds with the First Amendment. Putting the approval for commercial speech in the hands of individuals within the ABC Board’s judgement of what’s immodest or in bad taste is massively silly and certainly a violation of the First Amendment.
The court used four prongs in its ruling, much of it stemming from a prior case concerning beer labels: Bad Frog Brewery, Inc. v. New York State Liquor Authority. And, while the court found in favor of the defendant on the questions of whether Flying Dog’s label should be considered commercial speech (yes), whether the regulation is prior restraint on protected speech (no, because it’s commercial speech, essentially), whether there is legitimate governmental interest for its regulation (yes, because the ABC Board asserted it’s trying to protect children)… well, none of that matters if the 4th prong goes against the state, and here, it absolutely did.
And that question was whether the ABC Board’s decision was narrowly tailored to regulate its legitimate governmental interests. And the court says it very much was not.
Under the fourth prong of the Central Hudson analysis, “the party defending the regulatio must demonstrate narrow tailoring of the challenged regulation to the asserted interest- a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”‘ Insley, 731 F.3d at 300 (quoting Greater New Orleans Broad. Ass ‘n, 527 U.S. at 188).
From there, the court notes that the State’s refusal of the use of the beer label was not narrowly tailored at all. In fact, it was total and complete. It was as well tailored as an untouched piece of cloth. In addition, the highlights provided by Marc Randazza and Greg Doucette of just how haphazardly and capriciously the ABC Board has been in deploying this regulation lend credence to Flying Dog’s claims.
And, therefore, the regulation is unconstitutional.
Plaintiff has made a sufficient showing that the challenged regulation 1s facially unconstitutional because it is overbroad and otherwise not narrowly tailored to achieve North Carolina’s proffered substantial interest. While the ABC Commission may regulate alcoholic beverage labeling beyond the limits of the definition of obscenity, it must do so in a manner that comports with Central Hudson. See also Flying Dog Brewery, 597 F. App’x at 355 (Supreme Court, Sixth Circuit precedent and persuasive opinion in “Bad Frog Brewery  should have placed any reasonable state liquor commissioner on notice that banning a beer label based on its content would violate the First Amendment unless the Central Hudson test was satisfied.”).
And there you have it. It’s a hell of a First Amendment win that never should have gotten this far. The ABC Board actually went and approved Flying Dog’s label after the initial lawsuits were filed. But Flying Dog, perhaps true to its name, had sunk its teeth in and wasn’t going to let this go. Nor should it have, because this regulation was really, really in violation of free speech laws.