Dear Flying Dog,
Please tell me about your battle. It sounds interesting.
Sincerely,
bevlog
The Road Dog Porter label mentions shit not less than five times. Who would have expected the Founders were fighting for a beer company’s right to say this, and who ever thought a beer company would go so far to claim it. The label says:
We spent four long years in court fighting for our first amendment right to display the phrase “Good Beer, No Shit” on every bottle of Road Dog. In honor of sticking it to the man…
Fermentarium has part of the story:
The real heart of the issue is … You can’t put something indecent on the label. Unfortunately it is some guy in the government who gets to decide what’s considered obscene. He might be cool or he might be the most uptight person in the world. There is no way for the brewer to know. You might consider something obscene, but others may find the label acceptable. For example, is profanity considered obscene?
In 2001, the State of Colorado said yes it is. Flying Dog Brewery’s Road Dog Ale label was rejected because the label said “good beer… no shit”. The ACLU and Flying Dog Brewery sued stating the State of Colorado violated their First Amendment rights. Colorado agreed to discontinue the label restrictions, however it is ultimately a state right. Kansas can have completely different rules and restrictions.
While there are lower protections for commercial speech than political speech under the First Amendment, I don’t see how regulation of speech on a alcoholic beverage label is a state right.
I mean, I see how states can make rules about what labels are allowed, but I don’t see how those rules could ever trump the First Amendment. Not that Flying Dog doesn’t have better stuff to do than fight the state of Kansas…
Also, is it really necessary to self-censor the blog post on a free speech label like this? It kind of defeats the point of the story, since there was no fight to put “Good Beer, No Shi “[sic] on the label; the fight was over the word itself.
Nicholas, You may well be right about the spelling. The word didn’t bother us so much that we turned the page and ran away, but I also don’t feel any burning desire to type out the word yet again. I am content to leave it to Flying Dog, for now.
It’s a “consumer protection” thing. For example you cannot claim your beer cures cancer. The first amendment would not apply in this case. That’s the banner the states hide behind. You can’t have cartoon characters on beer, and you can’t have profanity because a child might see it. It’s the “won’t somebody think of the children” argument. It’s a weak argument, and it’s fallen in most cases where it is challenged. The problem is challenging the label requirements is expensive, and smaller brewers can’t afford the fight.
Currently, Flying Dog products are sold in 46 states and only one state finds our Road Dog label vulgar–West Virginia. And Nicholas is right–we have better things to do with our time than to put up a fight with West Virginia. We welcome West Virginians to drive across the border and enjoy a great ‘vulgar’ beer.
Annie Tunheim
Compliance Attorney
Flying Dog Brewery
Yeah, the state can prohibit misleading or otherwise harmful speech in the name of consumer protection, but that limitation must meet the Central Hudson standards for regulating commercial speech. This obviously doesn’t, but someone has to put the time in to go to court to make that clear.
I think my next 6-pack will be a Flying Dog product.
I wonder if WVA also has a problem with Flying Dogs’ Raging Bitch beer? (It’s fantastic by the way)
Interestingly, Raging Bitch is approved in the state of West Virginia (head out to your nearest liquor store!).