Richmond Times-Dispatch: After an intense legal battle, Virginia restaurants are free to advertise happy hour prices and puns

June 24, 2019 | By ANASTASIA BODEN

Virginia restaurants are finally free to unleash their creativity when crafting happy hour advertisements, thanks to recent legislation and a lawsuit brought by restaurateur and chef Geoff Tracy.

Believe it or not, Virginia specifically prohibited businesses from advertising happy hour prices and from using puns or creative terms to describe their happy hour specials. Restaurants could not advertise “$7 Chardonnay,” for example, or describe midweek offerings with wordplay like “Wednesday Winedown.” The result was largely bland and sanitized happy hour advertisements, limited to a “just the facts” presentation: happy hour here at X time. Under the revised laws, businesses are explicitly allowed to name their prices and to use “creative marketing techniques,” like puns, in their ads.

It might seem obvious that the old law was silly (and unconstitutional). Yet it took a drawn-out First Amendment lawsuit to get the restrictions repealed.

The plaintiff in the suit was Geoff Tracy, owner of Chef Geoff’s in Northern Virginia and other Beltway restaurants, and a well-known social media personality. His Twitter account is full of punny advertising. Many such jokes are about his favorite food: bacon. Others suggest dropping by one of his restaurants to enjoy his popular happy hour.

Tracy sued the state’s Alcoholic Beverage Control Authority (ABC) on the basis that the laws violated his First Amendment rights.

If it’s legal to offer happy hour, he argued, it must be legal to truthfully advertise it — or to advertise it in a way that makes people laugh.

Represented by the Virginia Attorney General’s office, ABC fought back hard. It requested thousands of pages in financial information from Tracy, initiated discovery disputes, and repeatedly asked the judge to delay resolution of the case. At one point, it exploited a tragic story about a woman who drove while drunk after attending a Washington, D.C., happy hour to suggest that the advertising ban was necessary to prevent drunken driving fatalities.

Yet all along, ABC was privately lobbying for the law’s repeal. This inconsistency — and the state’s tactic of using discovery disputes to delay the case just until the General Assembly met — raises serious questions about its use of resources. Why was the Attorney General’s office driving up the cost of litigation when ABC essentially conceded that the laws are unnecessary and asked the General Assembly to repeal them?

One answer is that once the legislation goes into effect, there will be no more need for a lawsuit. That’s both a good thing and a missed opportunity. It’s great that Virginia is now a better place to do business, but the lawsuit would have had significant implications for First Amendment jurisprudence.

ABC had argued in court that its censorship was necessary because freer advertising would lead to a happy hour bidding war, which would drive happy hour prices down, which would then induce Virginians into a drinking frenzy.

In response, Tracy asked the court to rule that the state cannot censor truthful information to deter perfectly legal conduct. If it’s legal to do it, it must be legal to talk about, and the state cannot use censorship for paternalistic reasons.

In cases concerning cigarettes, beer alcohol content, gambling and liquor prices, the Supreme Court has sided with Tracy’s position. In an opinion striking down Rhode Island’s restriction on advertising liquor prices, the high court proclaimed that “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.”

Tracy’s lawsuit presented an opportunity for federal courts to affirm the limits on the state’s ability to restrict speech for paternalistic purposes.

By lobbying for repeal, ABC has evaded an adverse court opinion that would have prevented the state from engaging in similarly misguided censorship in the future.

Regardless, Tracy is pleased with the legislative change. After all, there have been efforts to relax Virginia’s happy hour laws in the past, and all failed to secure the right to advertise prices and puns. It was only after Tracy brought a lawsuit that ABC changed its tune.

Thanks to the lawsuit, Virginia is a better place to do business than it was before. And it’s a more fun place to advertise, too. At your next happy hour, raise a glass to the vindication of First Amendment rights.

Anastasia Boden is an attorney for Pacific Legal Foundation, and was lead counsel in the lawsuit on behalf of Geoff Tracy.

This article was originally published by The Richmond Times-Dispatch on June 21, 2019.