Washington Post: I fought for — and won — the right to advertise happy hour in Virginia

April 29, 2019 | By GEOFF TRACY

This article was originally published by The Washington Post on April 29, 2019.

Geoff Tracy owns restaurants in the District, Maryland and Virginia and was represented by Pacific Legal Foundation.

In July, a new law will take effect in Virginia, repealing the state’s long-standing prohibition on advertising for happy-hour drink specials.

My response to this development, as a restaurant owner who launched a legal challenge against the burdensome advertising restrictions: It’s about time. While many Virginians might not even notice the change, this is a significant victory for small-business owners in the hospitality industry and for advocates of free speech.

Here’s why it was time for the advertising restrictions to go:

For years, restaurateurs in Virginia were constrained in how we could communicate about happy-hour drink specials and pricing. While it’s perfectly legal to sell alcoholic beverages at reduced prices, it was illegal to advertise those prices or to use catchy slogans or tag lines in signage or ad copy.

The ostensible reason for these prohibitions was paternalistic caution on the part of the state. Virginia officials apparently feared that consumers who read a sign advertising drink specials would soon succumb to the dark temptations of demon rum, leading to their ultimate ruin. The idea that casual social drinkers need protection from insidious advertising was absurd on its face, yet persisted in Virginia for decades — until this year, when state lawmakers passed legislation to repeal the rules in the face of a legal challenge.

Those restrictions weren’t just nonsensical. The ban on happy-hour advertising was a significant hurdle for entrepreneurs such as me. Advertising is crucial in the restaurant business, especially in the D.C. area, where eateries and bars are plentiful, happy hours are popular and competition is fierce.

Restrictions on advertising aren’t just inconvenient but also can be crippling to restaurateurs who are seeking to build their brand identity and just want to get the word out to potential customers. Profit margins in the restaurant business are notoriously slim, so if you’re a business owner in this industry, you want to be able to maximize any advantage you can get.

But the fight against happy-hour ad restrictions ended up being more than simply a practical matter of what’s best for entrepreneurs and informed consumers. There was also a critical constitutional principle at stake: the defense of free speech against government restraint and censorship.

The state’s restrictions and limitations on entrepreneurs’ ability to communicate factual, legal information to our patrons and potential customers clearly constituted censorship and violated our First Amendment rights. Some might attempt to argue that commercial speech is “less important” than political speech, but the Constitution makes no such distinction. And state officials shouldn’t try to make such distinctions.

I’m proud to have been able to play a role in getting us to this point, thanks to substantial support from attorneys at the nonprofit Pacific Legal Foundation. They took my case and worked closely with me to shape the legal argument for repeal.

We hinged that argument on the free-speech implications of the advertising prohibition, which I saw as absurd, paternalistic and an affront to Americans’ fundamental freedom to express ourselves. Let’s face it: Signs advertising happy-hour specials might not be exactly in the same league as the Federalist Papers — but protecting citizens’ freedom to communicate their ideas is essential, and worth fighting for.

The funny thing is that as the case progressed, what ultimately became clear was that no one was particularly wedded to these laws as a matter of policy. In the end, the Virginia Alcoholic Beverage Control Board even testified in favor of repealing the happy-hour advertising restrictions, which was a welcome development. An overwhelming majority of state lawmakers voted to repeal the prohibition on happy-hour advertising, with a minimum of controversy or debate.

Kudos to Virginia legislators and regulators for doing the right thing. The end of the state’s restrictions on happy-hour advertising is a win for small businesses, consumers and free speech. We can all raise a glass to celebrate that positive outcome.