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.