May 29, 2018

No, Virginia, we’re not going anywhere

By Anastasia P. Boden Attorney

As readers know, Virginia strictly forbids having too much fun with happy hour advertisements. The state allows businesses to use the sanitized statements “Happy Hour,” or “Drink Specials,” but forbids restaurants from advertising the price of any happy hour drink, or using fun phrases like “Sunday Funday,” (or “First Amendment Friday,” for that matter) to describe their offers.

We recently challenged Virginia’s Happy Hour Speech Code under the First Amendment on the basis that the state can’t censor perfectly truthful information just because it thinks censorship is good for you.  There’s no “vice exception” to the first Amendment—if it’s legal to have happy hour, it must be legal to talk about it.  The state responded by trying to get us kicked out of court.

In their motion to dismiss, the state argues that our client, chef and restaurateur Geoff Tracy, doesn’t have standing to bring his lawsuit because the law restricts what businesses can say, not their owners. As we responded in our opposing motion, that’s simply not so.  The only way that the restaurant “speaks” is through the words and creative thinking of people like Geoff, who come up with the restaurant’s specials and advertise them on places like their personal Twitter accounts (Chef Geoff’s account is quite entertaining.  If you like bacon, food pics, and hilarity, I highly recommend it).  So when Virginia stifles the restaurant’s speech, it stifles its owner’s speech as well.  Additionally, the state’s argument that Geoff could advertise with impunity seriously undercuts any interest they have in enforcing the law.  If they need this law to protect the public, it makes no sense to allow the restaurant to evade liability so long as it advertises covertly in its owner’s name.

The state also argues that the Complaint is too vague and that it cannot determine which portions of the happy hour speech code Plaintiffs are challenging.  Virginia also says it does not understand the “nature” of the plaintiffs’ First Amendment injury.  But the Complaint is clear: we challenge the ban on advertising prices or using creative terms for “happy hour,” as well as the state’s ban on two-for-one specials.  Though we occasionally refer to those provisions together as the “happy hour speech code” it should be clear enough what, exactly, we are challenging.

Geoff’s and his restaurant’s injury is likewise clear: under Virginia law, they’re prohibited from advertising truthful information about their legal business practices.  In other words, they can’t say what they want to say, and that’s an infringement on their First Amendment rights.

In sum, we think the Complaint should withstand the motion to dismiss, and we expect a resolution shortly.

In the meanwhile, if you want to hear about some other whacky state alcohol laws, check out R Street Institute’s Jarrett Dieterle and me playing a game of “real or fake laws: boozy edition”

 

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Chef Geoff’s v. The Virginia Alcoholic Beverage Control Authority

Award-winning restaurateur Chef Geoff Tracy owns three restaurants in Washington, D.C., Maryland, and Virginia. Only Virginia, however, restricts the way Chef Geoff advertises happy hour specials. While state law allows businesses to offer happy hour, it bans advertising happy hour prices, as well as the use of any terms other than “happy hour” or “drink specials.” Also, while restaurants may offer half-priced drinks, it’s illegal to call these specials “two-for-one.” In a lawsuit filed on behalf of Chef Geoff, PLF argues that Virginia’s happy hour advertising restrictions prevent restaurants from speaking freely and truthfully about their business—a clear violation of the First Amendment.

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