May 12, 2015

The Michigan Liquor Control Commission violated Flying Dog Brewery's First Amendment rights.

Said the United States Court of Appeals for the 6th Circuit.

The Commission had barred sales of the company's Raging Bitch brand on the ground that the label — a Ralph Steadman drawing that might be seen as suggesting that beer could make you drunk — was "detrimental to the health, safety or welfare of the general public."



ADDED: Here's the PDF of the opinion. I love judicial description: "The label for 'Raging Bitch' beer depicts a wild dog presenting human female genitalia as well as possessing semblances of human female breasts."A taste of the facts:
Flying Dog’s CEO, James Caruso... stated that the company chose the “edgy” name and label because it reflected the nature of the Belgian yeast used to make the beer, and it promoted the Flying Dog brand. Caruso also represented that his employees—“many ladies working with Flying Dog”—and female customers in bars where Flying Dog conducted market research loved the label and thought it was humorous....

The Commission’s attorney... drew the Commissioners’ attention to the back of the beer label containing the sentence, “Remember, enjoying a RAGING BITCH, unleashed, untamed, unbridled—and in heat—is pure GONZO!!” The attorney reported visiting Flying Dog’s website where he found the remark, “Raging Bitch, if you’re lucky, your bitch will look this sexy after 20 years.” Noting that not “many dogs . . . live[] twenty years,” the attorney observed “[t]here is a tenor, if you will, to the promotion that I think you have quite correctly caught and need to address.”...

Commissioner Weatherspoon observed that a “dog’s not going to drink this beer. . . . it says and in heat, which specifically refers to a female dog . . . [s]o you got to get me from the dog in terms of the reference here, to humans.”  Caruso explained that “it’s a play on words . . . . So Raging Bitch is a, well you can call it a brood bitch for Raging Bitch when a dog is in heat,” to which Commissioner Weatherspoon replied, “That’s not the words you used.” Caruso argued that the Commission had previously approved Flying Dog’s beer label for “In-Heat Wheat” and at one time had approved the name “Blond Bitch” submitted by Horny Bitch Beer Company.  It was Flying Dog that proposed the review standard of the Commission with Caruso’s statements and conclusion that “there’s a difference between edgy and offensive, and it’s certainly a gray area and you gentlemen will determine where that edge is.”...
A sip of the law:
A government official is liable for the violation of a constitutional right if “the right was clearly established . . . in light of the specific context of the case.” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (internal quotations marks omitted). A right is clearly established if the contours of the right are sufficiently clear that a reasonable official would understand that what he or she is doing violates that right....

The Supreme Court held nearly thirty-five years ago that government officials may regulate truthful, non-misleading commercial speech only if the regulation directly advances a substantial state interest and the regulation is not more extensive than necessary to serve that interest....

Honoring the distinctions between commercial speech and other forms of constitutionally protected expression, the Court outlined a four-part test for courts to use in evaluating whether government regulation of commercial speech violates the First Amendment:
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
... In the face of this strong line of First Amendment precedent, the Administrative Commissioners point to the Second Circuit’s grant of qualified immunity to state liquor commissioners who banned a vulgar beer label. Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998).... In Bad Frog Brewery, the district court held that the rejection of Bad Frog’s beer label, which showed a frog “giving the finger,” did not violate the First Amendment. The Commissioners contend that Bad Frog Brewery demonstrates that the law in this area was not clearly established at the time the Commissioners acted. We disagree.

In Bad Frog Brewery, the district court held that the rejection of Bad Frog’s beer label, which showed a frog “giving the finger,” did not violate the First Amendment. Id. at 102. The Second Circuit reversed on the constitutional question, but nonetheless concluded in one sentence that “[t]he District Court’s decision upholding the denial of the application, though erroneous in our view, sufficiently demonstrates that it was reasonable for the commissioners to believe that they were entitled to reject the application.” Id. The court offered no further elaboration on its qualified immunity analysis so there is little we can take from that grant of qualified immunity to guide our decision here. Bad Frog Brewery is persuasive authority only for the point that state liquor commissioners should have been on notice after 1998 that banning a beer label for vulgarity violates the First Amendment.

29 comments:

ddh said...

Beer can make you drunk?

MayBee said...

Adam Carolla sells an alcohol product, and he said the body who approves of such things (in California?) wouldn't allow his label to say anything about getting drunk, or even say it "packs a punch".

Chris said...

I love judicial description: "The label for 'Raging Bitch' beer depicts a wild dog presenting human female genitalia as well as possessing semblances of human female breasts."

Doesn't appear any more human than canine, to me.

Steven Davis said...

As a MD native, Flying Dog and Raging Bitch in particular are favorites of mine. Nice to see Althouse cover this. As I type this, I'm enjoying an Old Dominion Candi, the label artwork portrays a busty blonde Belgian girl in a very low cut outfit.

David said...

8.3% alcohol might endanger the General Public if over consumed, but that would apply to less alcoholic beer as well, though in larger quantities.

And I'm with Chris on one thing. Pity the Judges whose experience with human breasts was apparently ones similar to that dog's.

Brando said...

I have a couple bottles of that in my fridge! I had no idea beer could make you drunk. I just assumed each time I drank about twelve of them I'd magically time travel ten hours in the future.

Smilin' Jack said...

The Commission had barred sales of the company's Raging Bitch brand on the ground that the label...was "detrimental to the health, safety or welfare of the general public."

I would think a simple warning like "Caution! Do not eat this label!" would solve the problem. Seems to work for everything else.

Fritz said...

Steven Davis said...
As a MD native, Flying Dog and Raging Bitch in particular are favorites of mine. Nice to see Althouse cover this. As I type this, I'm enjoying an Old Dominion Candi, the label artwork portrays a busty blonde Belgian girl in a very low cut outfit.


Buying beer by the carton art? Works for me.

rhhardin said...

Dogs in heat have very enlarged genitalia, structurally analogous to labia minora. So the judge erred on that.

Eric said...

I'm not the beer aficionado I used to be, but WTF is a Belgian Style IPA?

Coupe said...

I'll cut to the chase, if a beer needs this much marketing, it has to be pretty bad - bilge water.

I don't drink beer to enjoy it, I use it to keep me hydrated, in which case 3.2 is a good trade-off for CO2 content in water.

When I want to enjoy something and relax, it's rum - matey...

Recliner, rum, cat snoring, the house creaking in the wind...

Coca-cola if I'm using the band-saw...

Steven Davis said...

Fritz: No not really, I drink most micros on tap, although the tap handle sculpture art is yet another marketing opportunity.

Coupe: The craft beer market is very competitive, and there are alot of very good craft breweries out there that don't make it.

Eric: You need to try new things more often. While the IPA is not a traditional Belgian style, American craft brewers have created a pretty great hybrid of the styles.

Quaestor said...

I am so bored by moronic bottle art. Quaestor follows a simple rule of thumb when choosing a yet untasted craft beer -- the more effort that goes into the label the less effort goes into the bottle.

Flying Dog Brewery should be banned on grounds of deviant conformity.

Steven Davis said...
This comment has been removed by the author.
Steven Davis said...

Quaestor, any product a business intends to sell must be marketed. That said, the Raging Bitch label is the most "edgy" of the product line. Craft brewers can't afford to market the old-fashioned macro brewery way with clever Super Bowl commercials featuring women in bikinis.

chickelit said...

Quaestor said...
I am so bored by moronic bottle art. Quaestor follows a simple rule of thumb when choosing a yet untasted craft beer -- the more effort that goes into the label the less effort goes into the bottle.

Fort Collins' New Belgium brewery made their first successful product, Fat Tire Ale, based on the label art: link

There's another craft brewer, Ommegang, out of Cooperstown, NY who makes great beer and one of my favorite labels: Hennepin

The Ragin' Bitch label art is a little too Gerald Scarfe for my taste. It doesn't sell well either, at least out here. I predict a flop after the publicity from this lawsuit dies down.

Stone Brewing is a fast growing company which makes great label art and great beer.

Still, I'm waiting for the "Lager Revolution." The best craft lager beer is made in my old hometown by Capital Beer.

chickelit said...

Craft brewers can't afford to market the old-fashioned macro brewery way with clever Super Bowl commercials featuring women in bikinis.

Maui Brewing makes a great craft lager called Bikini Blonde Lager. I "discovered" it in Hawaii a few years ago. The label features--you guessed it--a blonde in a bikini (modestly covered by a grass skirt).

Kzookitty said...

Quaestor has it about right.

The label's a mess and the name too cute. Bilgewater IPA is probably a fair description of the taste.

Also, cute name: add one dollar to retail price of bottle. Crappy art, add one more.

8.3% alcohol is 16.6 proof. Feed a coed two or three of those and she'll be looking to join one of those butt-nekkid art classes.

kzookitty

chickelit said...

Optimally, packaged craft beer should be stored completely away from light. This is why I favor cans. The hopheads are catching onto the "cans are better" thing too.

chickelit said...

Kzookitty said...
Quaestor has it about right.

The label's a mess and the name too cute. Bilgewater IPA is probably a fair description of the taste.


You two should probably stick to Miller High Life in clear bottles.

EMD said...

Reminds me of my absolutely most favorite Andy Warhol quote:

"I think people should see absolutely everything and then decide for themselves—not let other people decide for them."

Steven Davis said...

Chickelit said

The Ragin' Bitch label art is a little too Gerald Scarfe for my taste. It doesn't sell well either, at least out here. I predict a flop after the publicity from this lawsuit dies down.

You might notice the 20th Anniversary notation on the label art that was posted. RB and FD are quite popular here, I have no idea how it will do out there, but there's no way it doesn't get at least a bump because of this. I'm actually impressed that it's being distributed out there to begin with.

traditionalguy said...

Maybe Belgian Yeast is a druggie's dog whistle for a designer drug being sold in a beer bottle.

Coupe said...

EMD said...Reminds me of my absolutely most favorite Andy Warhol quote...

Funny you should mention him, because a Raging Bitch once shot him so full of holes, he was never the same again.

Rhythm and Balls said...

More yawn-worthy news from Uptight Flyover Land.

Brando said...

"The label's a mess and the name too cute. Bilgewater IPA is probably a fair description of the taste."

That's like, just your opinion, man. To each his own, de gustibus non est disputandum and all that.

Micros, like small wineries, will often have to resort to gimmicky names and labels to get the customers' notice--as mentioend above, they can't afford TV ads with bikini models and have to compete for shelf space with a number of competitors. Whether the beer is of high quality (and depending on your taste--some don't like IPAs, period) cannot be judged by the bottle.

Just Mike said...

We can't have the State liquor Commision vio;ating the brewery's First Ammendment rights! That's the Federal Government's job!
http://wp.me/p4bZJI-by

JorgXMcKie said...

One of the best things happening locally [Detroit area] is how many places let you 'select' a 6-pack of differing craft beers.
So, I sometimes select a new one of a type I already like just on the basis of the art. How much can that hurt? I've found some good beers that way and some ehhh ones. Still, only one bottle.

And I was first attracted to Founders' Dark, Rich, and Sexy by the art. Now one of my go to beers.

Kzookitty said...

I said blah blah blah
To which Brando replied:
That's like, just your opinion, man. To each his own, de gustibus non est disputandum and all that.

Micros, like small wineries, will often have to resort to gimmicky names and labels to get the customers' notice--



Oh, quite true. I'm not really their market, I suppose. Not that I wouldn't drink one if offered.

I'm lucky enough to live in Kalamazoo, Michigan. More great craft beer than ANYWHERE. And Bell's or Arcadia Ale doesn't have to resort to cartoony labels.

And Chicklit is right. I'll gladly bend my elbow with a Miller. Though I'd prefer a Bell's Porter.

kzookitty