BAD FROG BREWERY V.NEW YORK STATE LIQUOR AUTHORITYU.S.COURT OF APPEALS FOR THE S
ID: 418471 • Letter: B
Question
BAD FROG BREWERY V.NEW YORK STATE LIQUOR AUTHORITYU.S.COURT OF APPEALS
FOR THE SECOND CIRCUT
Bad Frog Brewery, Inc., makes and sells alcoholic beverages.Some of the beverages feature labels that display a drawing of a frog making the gesture generally known as “giving the finger.”Bad Frog's authorized New York distributor, Renaissance Beer Company, applied to the New York State Liquor Authority (NYSLA) for brand label approval, as required by state law before the beer could be sold in New York. The NYSLA denied the application, in part, because “the label could appear in grocery and convenience stores, with obvious exposure on the shelf to children of tender age.” Bad Frog filed a suit in a federal district court against the NYSLA, asking for, among other things, an injunction against the denial of the application. The court granted summary judgment in favor of the NYSLA. Bad Frog appealed to the U.S. Court of Appeals for the Second Circuit.
The U.S. Court of Appeals for the Second Circuit reversed the judgment of the district court and remanded the case for judgment to be entered in favor of Bad Frog. The appellate court held that the NYSLAs denial of Bad Frog's application violated the First Amendment. The ban on the use of the labels lacked a “reasonable fit” with the state's interest in shielding minors from vulgarity, and the NYSLA did not adequately consider alternatives to the ban. The court acknowledged that the NYSLA's interest “in protecting children from vulgar and profane advertising” was “substantial.” The question was whether banning Bad Frog's labels “directly advanced” that interest. “In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children's exposure to such displays to any significant degree.” The court concluded that a “commercial speech limitation” must be “part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity.” Finally, as to whether the ban on the labels was more extensive than necessary to serve this interest, the court pointed out that there were “numerous less intrusive alternatives.” For example, the NYSLA's “concern could be less intrusively dealt with by placing restrictions on the permissible locations where the appellant's products may be displayed within … stores.”
What law do you think would advance the state's articulated interests without running afoul of
the First Amendment?
Which stakeholders' interests are advanced by this ruling? Which ones are harmed?
Explanation / Answer
1. The First Amendment protects freedom of speech, in this case, commercial speech is of protection under this amendment as well. A law that would advance the state's articulated interests without crossing the First Amendment could be that the government is allowed to regulate speech, whether it be verbal or non-verbal, as long as it is necessary and leads to the advancement of a lawful governmental interest. In this case, NYSLA has the interest in protecting children from vulgarity and obscene advertising. NYSLA also has the interest of shielding minors from the influence of profanity and acting to maintain the promotion of temperance.
2. Commercial speech standards outlined under the Central Hudson Test are used to gauge what governmental regulations can be used against commercial speech. The first step to consider is if the expression protected by the First Amendment or not is by seeing "if it concerns lawful activity and isn't misleading." Next, it questions if the governmental concern is substantial or not. If yes to both, then the next step is to see if the regulation directly advances the interest, and if it is necessary to take extensive steps to serve the interest.
Bad Frog's interests are advanced by this ruling, in which it is concluded by the Court that although their labels may be offensive to some, it cannot be concluded as deceptive or going against the law, therefore it is protected under the First Amendment.
In the case, NYSLA's interests were harmed in which it was concluded that their regulation would not directly advance their governmental interests. In order to meet the "direct advancement" requirement, the state must show that the harms they are claiming are true and that they will relieve them to a material degree. For this part of the test, they failed to demonstrate this as the regulation was inconclusive in regards to being able to protect minors from vulgarity. With children already having so much exposure to vulgarity, such as comic books targeting children, it is not sufficient to say that banning alcoholic beverage labels will have a substantial effect on reducing what children are exposed to.
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