On or about September 17, 2009, Flying Dog Brewery requested permission to sell Raging Bitch beer in Michigan. About two months later, the Michigan Liquor Control Commission denied the application, asserting: “The Commission finds that the proposed label which includes the brand name ‘Raging Bitch’ contains such language deemed detrimental to the health, safety or welfare of the general public.”
Flying Dog filed a lawsuit last month, in the U.S. District Court for the Western District of Michigan. In a later post, we’ll review the state’s rationale. But for today, we highlight a few of the juiciest portions from the pleadings submitted by Flying Dog (and attorney Alan Gura). The complaint asserts:
Regrettably, the Michigan Liquor Control Commission and its members have taken it upon themselves to control not merely alcoholic beverages, but speech as well. Acting as a censorial board, Defendants wield state authority to impose their personal tastes as a prior restraint against core First Amendment expression that happens to be placed on beer labels.
The supporting memorandum goes on to cite the Staub case wherein the U.S. Supreme Court said:
It is settled by a long line of recent decisions of this Court that an ordinance which … makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.
The memorandum argues that the ban is too broad; “preventing all adults from all access to Raging Bitch [in order to protect some children] is hardly a narrowly tailored restriction.” The Butler case calls back from 54 years ago to remind us “by quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence. … Surely, this is to burn the house to roast the pig.” The brewer’s memorandum concludes:
The First Amendment is incompatible with the notion that government regulators may sit in judgment of a beer label, scrutinizing it for conformance to their personal views on what sort of expression might disturb delicate sensibilities.
If your tender sensibilities are not yet disturbed, you can find other such labels here.
Ken Tucker, G2G, BeerHere2010 says
Compared to a REAL controversy in Michigan right now (Financial Mgmt ‘Czar’ appointees taking over and dissolving towns http://j.mp/fVt5ss eg defacto privatized eminent domain) this constitutional overreach seems (almost)’tame’ but…
i’m of the give ’em an inch / slippery slope mindset so…
do FIGHT the good fight Flying Dog, there’s more to this than meets the ‘eye’.
and, if these MI regulators keep poking ya with a stick, consider 2nd siting or MOVING to NY’s ADK Mtns where the the state beer excise tax is 30% less gal (.14 v .20 cents/gal)
AND, we’re developing an EB-5 Regional Center SPECIFICALLY to entice/grow craftbeer brewing in/around the perimeter of the ADK park using some of the 9+ TRILLION gal/yr of pure soft forever wild water running outta the Adirondack watersheds.
Seriously, stay tuned.
ps ‘bitchin’ Streadman graphic, i likey
Nathan Lutchansky says
I’m all for freedom of speech and everything but…that label is seriously obscene. I don’t think I’d carry it in my bar no matter how good the beer was.
Is your bar any fun and what harm could it do?