April 16, 2018

National Review: Prohibition is alive and well in absurd state alcohol laws

By Anastasia P. Boden Attorney

Published by National Review April 16, 2018.

Nearly 100 years after Prohibition’s repeal, government still can’t seem to shake its obsession with our vices. Although society has advanced immeasurably over that time, the puritanical obsession with people wetting their whistles continues. The nation’s paternalistic and corrupt experiment with banning alcohol has been widely decried as a failure. Nevertheless, piles of costly, anti-competitive, and inane alcohol laws remain in force today.

The modern vestiges of Prohibition tend to be as corrupt as that failed institution. In the 1920s, Prohibition enriched organized crime, which bribed officials and law enforcement to protect their racket. Today, arbitrary alcohol laws enrich entrenched businesses by preventing competition, and they return the favor with campaign contributions to the politicians who defend those laws.

In Indiana, only liquor stores can sell cold beer, while groceries stores, convenience stores, and pharmacies are stuck selling beer at room temperature. There is no good justification for this. The state claims it doesn’t want people chugging cold beer in the parking lot before getting behind the wheel. But how exactly does that justify letting cold beer be sold in liquor stores but not in Whole Foods? Does the state have any evidence that customers are more likely to get sloshed in the parking lot if a store sells both cold beer and organic kale? No, Indiana’s law is a transparent attempt to benefit politically active liquor-store owners at their competitors’ expense.

Some outmoded alcohol laws are downright ridiculous. In Virginia, happy hour is legal, but the state heavily restricts what business owners can say about it. Bars may advertise that they have “happy hour.” But they cannot name their happy-hour prices anywhere outside the store — which effectively renders any happy-hour advertisement useless. The entire point of happy hour is that drinks are sold at a reduced price.

Even more absurd, Virginia forbids bars from calling their happy hour by anything other than the generic terms “happy hour” or “drink specials.” In other words, the state bravely protects its residents from lame alcohol puns such as “WINEdown Wednesday.” George Washington, a whiskey distiller, home brewer, lover of liberty, and Virginian, must be rolling in his sarcophagus.

We shouldn’t laugh off these silly laws. They have significant real-world effects, especially on bars that need to advertise to attract customers. Chef Geoff owns an eponymous restaurant in Tysons Corner, Va., where he promises “great food, libation,” and “merriment.” But the restaurant cannot truthfully advertise that its happy-hour specials beat the competition, costing Chef Geoff business and his lost customers a good time.

Represented by Pacific Legal Foundation, Chef Geoff has filed a First Amendment lawsuit challenging this silly censorship. The government cannot prohibit truthful speech about legal business practices, even if the information relates to alcohol. The Supreme Court has repeatedly held that the First Amendment protects the right to advertise truthfully, and consumers entering the marketplace benefit from such information. That’s as true for happy hour as for any other lawful business practice. There is no “vice” exception to the First Amendment.

It’s about time that states learn the lesson they should have a century ago. Unnecessary, corrupt, and inane alcohol laws only hurt businesses and burden consumers.

Anastasia Boden and Jonathan Wood are attorneys at the libertarian Pacific Legal Foundation.

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