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Flying Dog Brewery Wins Against North Carolina On ‘Vulgar’ Beer Label Art

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.

Filed Under: 1st amendment, abc board, advertisement, beer, beer label, north carolina, offensive, vulgar
Companies: flying dog

North Carolina Sued By Flying Dog Brewery Over Regulatory Body Refusing To Allow Sales Due To 'Offensive' Label

from the it's-just-a-penis,-guys dept

Normally, when we talk about beer in these pages, we’re typically talking trademark infringement issues. Because of the creative way those in the exploding craft brewing industry have gone about naming their brews and designing their labels, far too often this results in disputes between parties over what is too similar to what, or who’s design is too close to another’s. While this specific story doesn’t involve trademark law or disputes, it does still exist due to the creative practice of labeling.

Flying Dog is a well known name in the craft beer industry. Not huge, but certainly not small, Flying Dog’s labels have a certain aesthetic motif in the artwork that is easily recognizable. As part of the process for using those labels on cans and bottles of beer, the brewery has to gain a certificate of label approval from the ATF. It also then has to gain the approval for labels from individual state agencies as well. For its forthcoming “Freezin’ Season” ale, Flying Dog was able to get the afore-mentioned approvals at both the federal and state levels in every case, except for North Carolina. There, the North Carolina Alcohol Beverage Control Board (ABC) denied approving the label, thereby disallowing Flying Dog to sell bottles within the state entirely. Why? Well…

Still having trouble figuring out what the problem is? Well, it’s that little protrusion from between the outlined figure’s legs. Is it a penis? Gasp! Maybe! Flying Dog hints that it’s actually a little tail nubbin, but I’m not sure I believe them. Nor does that really matter, actually, since this beer label is absolutely constitutionally protected speech and the ABC’s refusal to permit its sale in commerce not only serves as a violation of Flying Dog’s speech rights, but also is prior restraint.

The offending label—like all Flying Dog beers—contains a distinctive cartoon image by illustrator Ralph Steadman, whose work with the Maryland-based brewery dates back to its roots in the gonzo-lands near Aspen, Colorado. It’s not clear exactly what the state’s regulators object to—though the naked, humanoid figure on the beer’s label does sport a small appendage between its legs. Caruso says he suspects that “tail-like thing” is what triggered the ban.

“The regulation is, on its face, in constitutional ‘bad taste,’ as it is in clear violation of the First Amendment,” attorneys for Flying Dog, including veteran First Amendment lawyers Greg Doucette and Marc Randazza, argue in court documents. They say banning the beer label is an unconstitutional viewpoint-based restriction on speech, similar to restrictions that the U.S. Supreme Court has repeatedly struck down.

It’s hard to imagine what the counterargument in court will be, honestly. The puritanical viewpoint of North Carolina’s ABC ought have no bearing on whether or not another entity’s speech rights should be infringed. Given the approval for the label in literally every other state and the federal government, it’s difficult to see how the state could even mount a serious case that there is anything offensive here.

Thine own eyes should have you reaching the same conclusion. Even if we assume that the depiction includes a small, cartoon penis, it’s certainly not pornographic in nature. Nor is it detailed enough to warrant concern amongst anyone at all. It’s just a tiny blip on the artwork of a beer label.

And, yet, it appears this is a regular thing in North Carolina.

This is not the first time that North Carolina’s beer regulators have attempted to censor a product being sold in the state. WECT Channel 6, based in Wilmington, North Carolina, reported in 2019 that the state ABC had blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board’s sensibilities. Among the “inappropriate” products banned from the state are beers with names like “Daddy Needs His Juice,” and “Beergasm.”

Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewing Company that its “Polygamy Porter” could not be sold in the state because “polygamy is illegal.” But the board also banned a beer named “Kissing Cousins” despite the fact that it is literally legal to marry your first cousin in North Carolina.

This is all very, very funny, but it’s also a very real problem for Flying Dog. In its suit (embed below), Flying Dog states that it is currently taking orders on the seasonal beer in preparation for the winter months and it cannot currently sell in North Carolina due to all of this. Given that it also states that bottled beer is 90% of the company’s business, even a single brew being disallowed in a single state means we’re talking about very real money.

This lawsuit should be a fairly easy winner. And, frankly, it appears as though it’s well past time that North Carolina get a lesson in free speech when it comes to beer labels.

Filed Under: 1st amendment, alcohol beverage control board, beer, free speech, freezin season, labels, north carolina
Companies: flying dog