Our Opinion: Free speech case ends foolish NC beer label ban
Dave DiFilippo cartoon
Political appointees who run North Carolina’s booze bureaucracy will no longer play amateur art critic.
In a predictable and laudable win for free speech, a federal judge struck down the N.C. Alcoholic Beverage Control Commission’s rule banning beer, wine and liquor bottle labels judged “immodest, undignified or in bad taste” last week.
U.S. District Court Judge Terrence W. Boyle ruled in favor of Maryland-based Flying Dog Brewery, which challenged the regulation after the ABC Commission rejected the label for its Freezin’ Season Winter Ale last July. When Flying Dog sued the agency, the commission reversed course and approved the label without explanation, then sought to have the brewery’s complaint dismissed as moot.
The state tried to wriggle out of a First Amendment fight its lawyers knew it couldn’t win, but that outcome would keep an unconstitutional rule in place and subject other brewers, distillers and vintners to the threat of selective enforcement. Flying Dog pressed its case, and Judge Boyle listened.
“Since 1993, the ABC Commission has rendered administrative denials of 318 alcoholic beverage labels,” Boyle wrote in a 12-page order issued May 13. “Since 2009, 19 labels have been formally rejected as being undignified, immodest or in bad taste.”
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Freezin’ Season’s label features original artwork by Ralph Steadman — best known for illustrating “Fear and Loathing in Las Vegas” author Hunter S. Thompson’s book jackets — that depicts a nude man warming himself by a campfire on snow-covered ground. A small protrusion represents the cartoon figure’s genitals, but the artwork isn’t explicit.
Assistant Attorney General Robert J. Pickett trotted out a tired excuse for government censorship: The ban on using adult imagery to sell adult beverages to adults is only meant to protect the children.
“Defendants’ argument that, absent the challenged regulation, children will be ambushed by vulgar and sexually explicit alcoholic beverage labels while ‘shopping for the necessities of life’ with their parents rings somewhat hollow in this day and age,” Boyle wrote.
While the judge disagreed with Flying Dog’s arguments that its Freezin’ Season label didn’t constitute commercial speech and that the review and approval process functioned as a prior restraint, Boyle blistered the state for its vague, subjective standards. Terms like “undignified” and “in bad taste” lack a limiting principle, and the practical effect of such loose language means the ABC Commission enjoyed broad power to reject any label its members dislike.
Under Supreme Court precedent, state and federal regulators can place some restrictions on commercial speech, but their discretion isn’t boundless. Boyle applied the three-prong test established in Central Hudson Gas & Electric Co. v. Public Services Commission of New York to determine the ABC Commission’s rule wasn’t narrowly tailored to achieve a substantial government interest.
“Plaintiff’s evidence demonstrating the inconsistency of the ABC Commission’s approval and rejections of alcoholic beverage labels as immodest, undignified and in bad taste further supports that the regulation is not sufficiently tailored,” the order states.
Like the still-touring Rolling Stones, Judge Boyle played the greatest hits. His ruling cites recent First Amendment precedents such as Matal v. Tam and Iancu v. Brunetti, which prevent the government from discriminating against trademark applications because they’re vulgar or offensive, and reaches back to landmark cases like Cohen v. California to explain that the prospect of a curious child ogling the beer label on a supermarket shelf doesn’t give the state carte blanche to censor craft breweries.
“Here, defendants have framed the state’s substantial interest more narrowly than simply preventing offensive speech, focusing instead on protecting ‘unwitting’ minors,” Boyle wrote. “However, the Court is mindful that ‘the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.’”
The ABC Commission picked the wrong brewer to bully. Flying Dog CEO Jim Caruso is a well-known free speech advocate who’s successfully fought beer label bans in other states.
“The First Amendment is the last defense against authoritarian and arbitrary government, and it must be protected against any and all threats,” Caruso said in a Monday statement.
We’ll drink to that.
Credit Caruso’s capable team of lawyers, Marc J. Randazza of the Las Vegas-based Randazza Legal Group, Durham solo practitioner T. Greg Doucette and W. Michael Boyer of Carolina Craft Legal in Greensboro, with securing a win for breweries’ expressive rights and a victory for consumer choice.
In the clash between free speech and meddlesome bureaucrats, more than beer is at stake. As we pointed out in March, the N.C. Division of Motor Vehicles’ ban on personalized license plates “offensive to good taste and decency” uses identical language to a California rule that a federal court struck down in November 2020.
RELATED EDITORIAL: 'Good taste' rule for license plates is unconstitutional
Attorney General Josh Stein ought to send copies of Judge Boyle’s ruling to other state agencies that haven’t gotten the message to head off similar judicial defeats at taxpayer expense.
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