July 6, 2018

Raising a glass to freedom of speech

By Anastasia P. Boden Attorney

Chef Geoff Tracy is an entrepreneur, cookbook author, and owner of three successful restaurants in the Washington, DC, metropolitan area. In two of those restaurants—those located in Maryland and Washington, DC—Chef Geoff can freely tell customers about his various happy hour promotions. But at his Virginia location, such truthful advertising is illegal.

Under the state’s arcane alcohol regulations, telling prospective customers about discount prices on alcohol is banned, as is using any moniker other than the generic “happy hour” or “drink specials.” This ban extends to all communications outside his restaurant, meaning Chef Geoff can’t advertise through direct mail campaigns, signs outside his restaurants, his restaurants’ website and Facebook pages, or even his personal Twitter account to tell Virginians that he offers five-dollar drafts on “Sunday Funday” or half-priced bottles of wine on “Wine Down Wednesday.”

This kind of censorship is flatly unconstitutional. The First Amendment’s guarantee of freedom of speech is one of the fundamental rights the Fourteenth Amendment incorporates against state governments. And this right includes not just the right to engage in political speech, but also to broadcast truthful messages about one’s business offerings. After all, if the government can curtail your right to advertise, it can effectively choke off your right to earn a living. The right to speak about one’s own business is fundamental to a free and functional market as well as personal liberty.

Our lawsuit is already gaining national attention. In addition to coverage in The Washington Post and other Virginia media, The Wall Street Journal editorial board agreed that “the First Amendment makes no exception for speech about vices. On the virtues of his argument, Mr. Tracy deserves to prevail in court.” The Supreme Court struck down a similar law in Rhode Island, and we are confident that Virginia’s outmoded law will meet a similar fate.

This article is an excerpt from PLF’s quarterly publication, Sword&Scales. To receive the digital magazine, subscribe here.

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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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