This month Flying Dog Brewery is launching a 1st Amendment Society, funded by the damages the Maryland company won from Michigan officials who tried to ban its Raging Bitch Belgian-Style IPA. The new organization, which will sponsor a journalism scholarship and talks on freedom of speech, is the product of a six-year legal battle that began in 2009, when members of the Michigan Liquor Control Commission took offense at the Raging Bitch label, which the agency had to approve before the beer could legally be sold in that state. The episode, one of many pitting bold brewers against bluenosed bureaucrats, shows how readily alcohol regulation becomes a cover for censorship and how easily petty tyrants conflate their personal tastes with the public interest.
The Raging Bitch label features an illustration by Ralph Steadman, an artist who frequently worked with gonzo journalist Hunter S. Thompson, a friend of Flying Dog co-founder George Stranahan. As described by the U.S. Court of Appeals for the 6th Circuit last year, the drawing shows "a wild dog presenting human female genitalia as well as possessing semblances of human female breasts." The label also includes this message from Steadman:
"Two inflammatory words…one wild drink. Nectar imprisoned in a bottle. Let it out. It is cruel to keep a wild animal locked up. Uncap it. Release it…stand back!! Wallow in its golden glow in a glass beneath a white foaming head. Remember, enjoying a RAGING BITCH, unleashed, untamed, unbridled—and in heat—is pure GONZO!! It has taken 20 years to get from there to here. Enjoy!"
Michigan's alcohol regulators did not like the label. Exactly why they did not like the label is not completely clear, because their reasons kept changing.
Initially, in November 2009, the Michigan Liquor Control Commission said the name of the beer and Steadman's message ran afoul of a rule prohibiting labels "deemed to promote violence, racism, sexism, intemperance or intoxication or to be detrimental to the health, safety or welfare of the general public." At an appeal hearing in April 2010, Commissioner Donald Weatherspoon complained that the word bitch, although ostensibly referring to a female dog, also could be read as a disparaging term for a female human. Flying Dog CEO James Caruso explained that "it's a play on words," which did not seem to mollify Weatherspoon.
"When we're in a gray area," said Commissioner Patrick Gagliardi, "[we] attempt to err on the side of the least offensive," and "we have not been willing to put this particular five-letter word on the front of the box." He alluded to the damage that might be done to impressionable passers-by who catch a glimpse of the Raging Bitch label on a grocery store shelf, saying, "That product goes in front of all ages from children on up." Gagliardi added that "we don't believe in censorship," which suggests he does not know what that word means. What does Gagliardi call it when government officials suppress speech because it offends them?
Denying Flying Dog's appeal in July 2010, the commission cited "language deemed detrimental to the health, safety, or welfare of the general public due to the promiscuous nature of the product label." As 6th Circuit Judge Karen Nelson Moore noted last year, "the Commissioners never explain how an inanimate object such as a product label could have a 'promiscuous nature.'"
In 2011, after Flying Dog sought a preliminary injunction against the Raging Bitch ban, the commissioners filed a brief that cited the state's "compelling interest in protecting the physical and psychological well-being of minors." They also mentioned Michigan's "substantial interest in regulating alcohol consumption and promoting temperance." How banning the word bitch from beer labels promotes temperance is almost as mysterious as the question of how a beer label can be promiscuous.
In an affidavit accompanying that brief, Weatherspoon and Commissioner Nida Samona argued that "the name, text and the drawing on the label, taken as a whole, promotes sexism." This was the first time the commissioners explicitly complained about Steadman's drawing, which according to Samona "caricaturizes a wild female dog to portray women as wild animals that must be tamed." She added that "the female dog has her behind exposed with her vagina showing, clearly illustrated and facing the viewer." Samona repeatedly described the Raging Bitch label as "offensive," leaving little doubt as to her motivation in supporting the ban.
As Judge Moore put it last year, "The Commissioners' shifting explanations raise the question whether the asserted state interests were at the forefront of the Commissioners' minds when they rejected Flying Dog's request, or whether they are post-hoc rationalizations developed for the federal courts. The Commissioners' own statements…provide strong support for Flying Dog's argument that its request was rejected for a clearly unconstitutional reason."
By the time Moore wrote that, the commission had rescinded the rule under which it rejected the Raging Bitch label and reversed its decision, having concluded that the beer's name did not represent an intolerable threat to the public after all. The commissioners supposedly were responding to a 2011 Supreme Court ruling applying "heightened judicial scrutiny" to Vermont's restrictions on the use of pharmacy records. But as the 6th Circuit concluded when it opened the door to damages by ruling that the commissioners were not entitled to "qualified immunity," they should have known from the beginning that they were violating Flying Dog's First Amendment rights.
Under a test the Supreme Court first articulated in 1980, restrictions on commercial speech that is not misleading and does not promote illegal activity are constitutional only if they are narrowly tailored to directly advance a substantial government interest. Avoiding offense is not a legitimate government interest at all, and the rest of the justifications for rejecting Raging Bitch were comically vague and inadequate. But such capriciousness is par for the course when it comes to state and federal regulation of beer labels.
Thirteen years before the Michigan Liquor Control Commission nixed Raging Bitch, the New York State Liquor Authority said no to Bad Frog, the label of which depicted the aforesaid amphibian "with the second of its four unwebbed 'fingers' extended in a manner evocative of a well-known human gesture of insult." That's how the U.S. Court of Appeals for the 2nd Circuit put it in a 1998 decision overturning the authority's rejection of the label.
New York's regulators, like Michigan's, invoked The Children, but the appeals court did not buy it. "In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children," it said, "barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children's exposure to such displays to any significant degree." To pass muster under the Supreme Court's precedents, the 2nd Circuit said, "a state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity."
Alcohol regulators in Alabama were not swayed by that logic. In 2012, while the Raging Bitch case was making its way through the federal courts, the Alabama Alcoholic Beverage Control Board banned the sale of Founders Brewing Company's Dirty Bastard Scotch ale. The board's lawyer said it was trying "to keep dirty pictures and dirty words away from children." If so, it was doing so haphazardly at best, having already allowed Arrogant Bastard Ale and Fat Bastard wines. It even let in Raging Bitch. A few months after turning away Dirty Bastard, following an outcry from beer lovers across the country, the board reversed itself.
In addition to state liquor authorities, brewers must be careful not to offend federal regulators, whose sensibilities explain why a copper ale produced by Lagunitas Brewing Company that was initially dubbed The Kronik is instead marketed as The Censored. The original name was deemed an allusion to psychoactive effects, a no-no under federal regulations. Lagunitas founder Tony Magee says the label "likely would have been approved" if it hadn't been for a young intern at the Treasury Department's Tax and Trade Bureau (TTB) who noticed the application and recognized the marijuana reference. (Magee pointed out that Bud is also a slang term for cannabis, to no avail.) This year the same fate befell Indeed Brewing Company's LSD Honey Ale, which was named for three of its ingredients: lavendar, sunflower, and date.
Even ingredient descriptions with no countercultural connotations can get a brewer into trouble with the feds. Back in the 1990s, the Bureau of Alcohol, Tobacco, and Firearms, which at the time was charged with approving beer labels, suddenly decided that Grant's Spiced Ale, a seemingly straightforward name that Yakima Brewing & Malting had used for years, was "frivolous." Meanwhile, it gave a pass to far less descriptive names such as Labatt's Blue (which is not blue), Pete's Wicked Ale (which is not malevolent), and Blackened Voodoo (which is not seared, spiced, or magical).
In a 2014 Daily Beast piece, Tim Mak cited several examples of beer labels that were rejected by Kent "Battle" Martin, a "pedantic pain in the ass" at the TTB, which has assumed the censorship duties formerly handled by the BATF:
Battle has rejected a beer label for the King of Hearts, which had a playing card image on it, because the heart implied that the beer would have a health benefit. He rejected a beer label featuring a painting called The Conversion of Paula by Saint Jerome because its name, St. Paula's Liquid Wisdom, contained a medical claim—that the beer would grant wisdom. He rejected a beer called Pickled Santa because Santa's eyes were too "googly" on the label, and labels cannot advertise the physical effects of alcohol. (A less googly-eyed Santa was later approved.) He rejected a beer called Bad Elf because it featured an "Elf Warning," suggesting that elves not operate toy-making machinery while drinking the ale. The label was not approved on the grounds that the warning was confusing to consumers.
Despite all that, someone at the Treasury Department gave the go-ahead to Raging Bitch. While federal regulators have a low tolerance for whimsy, they apparently do not mind sexism.
This article originally appeared at Forbes.com.
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