Following a recent decision from the Sixth Circuit Court of Appeals, the craft brewery Flying Dog will be able to pursue First Amendment claims against the state liquor commissioners who barred it from selling its “Raging Bitch” Belgian Style IPA without considering the First Amendment implications of the ban.
While some craft beer labels may seem deliberately provocative, FVLD member Glenn Rice, who represents many such brewers as well as the Illinois Craft Brewers Guild, pointed out that “craft breweries take great pride in distinguishing their unique products with creative and expressive trademarks and logos, and it is important that courts continue to protect their First Amendment rights.”
The Michigan Liquor Control Commission nevertheless curbed the “Raging Bitch” label, refusing to register it in the state because it was detrimental to public welfare. Flying Dog sued, claiming the commissioners violated its free speech rights by refusing to let the dogs out. Although the Commission eventually rescinded its ruling due to intervening Supreme Court precedent emphasizing constitutional protections for commercial speech, Flying Dog continued to seek damages from the commissioners for lost sales suffered during the ban.
The commissioners claimed they were entitled to immunity from damages, in part because Flying Dog’s First Amendment right to market the Raging Bitch label on Michigan’s supermarket shelves was not clearly established. The Sixth Circuit disagreed, finding that, even in 2009, “any reasonable state liquor commissioner” was on notice that a content based ban on the label must conform to the First Amendment, and cited a 1995 Supreme Court case, Rubin v. Coors, which invalidated a ban on including alcohol contents on beer labels. The Court held that the commissioners should have applied the “Central Hudson test,” from the 1980 Supreme Court case, which bars restrictions on truthful commercial speech regarding lawful activities unless (1) the government has a substantial interest in regulating the speech, (2) the proposed restriction directly advances the government’s substantial interest, and (3) the proposed restriction is no more extensive than necessary to further the government’s interest.
Flying Dog’s range may extend beyond craft beer. For example, the case may lend support to the Washington Redskins’ position in the team’s dispute with the US Patent and Trademark Office over its decision to strip the team of several trademarks (although, unlike the liquor commission ruling in Flying Dog, the USPTO’s decision does not bar the Redskins from selling products bearing the team’s name and logos).