Free speech v. the Beer-eaucrats

February 09, 2022 | By BRITTANY HUNTER

What do beer and free speech have in common? As it turns out, a lot.

Jim Caruso, CEO of Flying Dog Brewery in Maryland, has always had a passion for beer, economics, and free speech. It may not have ever occurred to him, though, that all three would someday become intricately intertwined and lead to legal battles on multiple fronts.

In the craft beer market, there are dozens of similar products for consumers to choose from. So how does a company get the competitive edge needed to compete in a saturated market? Great advertising.

For Flying Dog, irreverence is the name of the game. Since its inception, the brewery has carved out its place in the market with its, shall we say, off-color names—names like “Raging Bitch” Belgian IPA.

The edgy names are accompanied by equally edgy artwork, created by the infamous English artist Ralph Steadman, who collaborated with the one and only Hunter S. Thompson on illustrations and cover art for Thompson’s books.

For Flying Dog, it was the combination of the beer’s artwork and names that sparked a decade of lawsuits.

Governments have this pesky little habit of infringing upon a company’s free speech by dictating how it can or cannot advertise a product.

Pacific Legal Foundation once represented Chef Geoff Tracy, an entrepreneur who owns several restaurants in the Washington, D.C. area. Geoff wanted to advertise happy hour deals at his Virginia restaurant, but government speech police were waiting to shut down ads that used the verboten phrases “happy hour” or “two-for-one.”

Why were these seemingly benign phrases cause for censorship? Because of an arbitrary law restricting Geoff’s freedom of speech. Virginia law allowed restaurants to offer half-priced drinks but made it illegal to call these specials “two-for-one.”

We’ve also seen this play out with nut milk products, which the dairy industry contested did not come from animals and, as such, should be forced to use names like “almond beverage” instead.

In Caruso’s case, state liquor commissions came after his beer, claiming that the names and artwork were indecent and vulgar, and demanding his products be taken off store shelves immediately.

It all started in Colorado over a decade ago. One of Flying Dog’s beers is named “Road Dog Porter” and featured the slogan “Good Beer, No Shit.” State officials did not find the slogan as funny as the beer’s fans did, and Caruso was told to immediately remove the beer from store shelves or else lose his license to sell his product, which would have had drastic economic consequences.

Caruso, already an avid supporter of free speech, sued, and after years of litigation, the court ruled that banning the beer was a violation of his First Amendment rights.

In Michigan, the state liquor commission asserted that Flying Dog’s “Raging Bitch” was “detrimental to public health, safety, and welfare of the general public.”

The Michigan State Police contacted Flying Dog and the company was once again told that they must remove the product from the market within 24 hours. If they failed to do so, the state would be confiscating the beer.

State officials claimed that the fact that Oprah didn’t use the word “Bitch” on her show was proof that the language was out of line. As to why this was the standard the label had to live up to is anybody’s guess. But it didn’t change the situation in which Caruso found himself.

Back to the courtroom he went, and once again—after years of litigation—he came out triumphant. The Sixth Circuit Court of Appeals ruled that “banning a label for vulgarity violates the First Amendment.”

But his legal troubles weren’t over. Now, Caruso once again finds himself fighting for his right to sell his product, this time in North Carolina.

The beer at the center of the lawsuit is called “Freezin’ Season.” North Carolina law requires breweries to send their labels to the ABC Commission for approval before the beer can be sold, and because the label features a very abstract painting of some sort of figure standing unclothed in front of a bonfire, the commission rejected the label, calling it “inappropriate.”

Now, looking at the drawing, it’s hard even to detect what the figure is wearing—or not wearing. Still, the commission rejected the label. State law allows them to ban product labels that it views as “undignified, immodest, or in bad taste,” though all those terms are subjective to the beholder.

And it wasn’t just Caruso dealing with this type of censorship. The state commission also banned 230 additional wine and beer labels.

As he was known to do, Caruso challenged North Carolina just as he challenged the other states. The state ended up approving the label, ending the legal battle. That wasn’t enough for Caruso. His beer may have been saved, but the law was still on the books. He pressed on with the case.

Caruso filed suit at the end of 2021 on the grounds that the state law violated the First Amendment protection of free speech. The case is ongoing today.

Ask most people what the First Amendment protects, and the first answer will likely be the freedom to express your opinion and peacefully protest. While true, people often forget that First Amendment protections extend to economic liberty.

As PLF attorney Jim Manley once wrote:

“Free speech… is at the root of our most basic human and social needs, including our economic dealings…”

He continued:

“All those boxes on the grocery store shelves, for example, are not just dinner; they are the tangible expression of the First Amendment.”

The courts have, unfortunately, made it clear that protecting commercial speech takes a back seat to protecting other forms of free speech, like political speech.

Justice Clarence Thomas correctly wrote that there is no “philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.”

For Caruso, his love of free speech was not born out of his legal battles—it’s been a priority for him for the entirety of his life.

After he won the first two cases, he took the money he was awarded and founded the 1st Amendment Society, an organization that gives scholarships to investigative journalists and even hosts banned books seminars.

Summing up his passion for free speech, Caruso said:

“Does anyone really want to live in a country where government bureaucrats can censor material based on whim and personal preference? Books? Music lyrics? Videos streamed in the privacy of your own home? News stories?”

We couldn’t agree more, which is why commercial free speech has been such an important issue for Pacific Legal Foundation.

Every individual has the right to earn a living free from government interference. And while we may not have been involved in Caruso’s cases, we are dedicated to helping others who have had their economic liberty inhibited by government.