Alcohol

If BYOB Is Legally Allowed at Strip Clubs, They Have a First Amendment Right to Advertise It

So held a federal court in New Jersey yesterday (GJJM Enterprises, Inc. v. City of Atlantic City).

|The Volokh Conspiracy |

Under the First Amendment, the government generally can't ban commercial advertising of legal behavior. That's true for alcohol as well as for other products. (Marijuana is different, because it's still illegal under federal law.) Thus, the Supreme Court has held, the government can't ban beermakers from indicating their alcohol percentage on their bottles, and can't ban markets from promoting the prices of their alcohol. The government argued that such advertising risked increasing alcohol consumption (for instance, by promoting "strength wars" for beer), but the Court rejected that rationale.

Yesterday, in GJJM Enterprises, Inc. v. City of Atlantic City (D.N.J.), a federal district court unsurprisingly applied the same to strip clubs promoting that you can bring your own beer and wine to them (wherever such BYOB policies are legal, as they are in New Jersey). Quite correct, I think.

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  1. “But our stippers don’t bring their own boobs.”

  2. This case seems very similar to the California case about advertising handguns (Tracy Rifle and Pistol v. Harris, I believe). You were/are involved in that case aren’t you Professor?

  3. I am indeed involved in Tracy Rifle.

  4. Under the First Amendment, the government generally can’t ban commercial advertising of legal behavior. That’s true for alcohol as well as for other products.

    But not tobacco?

    1. As I understand it, the main restrictions on tobacco advertising in recent years have stemmed from the settlement of various lawsuits against tobacco companies. (There are or at least were also restrictions on advertising tobacco on broadcast television and radio, but as cases such as FCC v. Pacifica and Red Lion show, broadcast programming — even the noncommercial speech — is less protected than other material.) The one time a First Amendment challenge to cigarette advertising restrictions came before the Court, in Lorillard Tobacco v. Reilly (2001), the restrictions were largely held unconstitutional.

  5. I wouldn’t in any way dispute this understanding of the current interpretation of the First Amendment, but I’d note that it has never made much sense to me. Why isn’t allowing commercial distribution of a possibly dangerous substance or product (to avoid encouraging black market activities), while restricting advertising that might increase overall usage a reasonable thing for the government to do?

    1. a reasonable thing for the government to do

      When does the government do “reasonable” things without going overboard?

      ban beer-makers from indicating their alcohol percentage on their bottles

      Case in point: The government requires almost all food or beverages, including many other alcoholic beverages that label their proof, to list ingredients; but wants to prohibit this particular instance, presuming it will have bad effects because beer drinkers will chase high alcoholic content, and not considering that many drinkers might do the opposite.

      And the Bill of Rights is a list of Rights, not “reasonable suggestions.”

    2. ban beer-makers from indicating their alcohol percentage on their bottles

      while requiring liquor to be labelled with accurate proof? Made no sense.

      I like to be warned that a locally produced ale is 5.7% so I can cut off at two or maybe just one, to avoid a next morning misery.

      As far as uplifters trying to save me goes, I like to quote Edgar Allan Poe: “`He that is born to be a man,’ says Wieland in his Peregrinus Proteus, `neither should nor can be anything nobler, greater, or better than a man.’ The fact is, that in efforts to soar above our nature, we invariably fall below it. Your reformist demigods are merely devils turned inside out.”

      Or the road to hades is paved with the unintended consequences of good intentions. We had local option prohibition of alcohol from 1953-1968 with the result being rampant bootlegging.

  6. The NJ law banning BYOB advertisements applied to all establishments, not simply strip clubs. There was one case in which a restaurant owner was convicted for violating the law because he had a wine corkscrew on a string hanging from the check-in desk. That supposedly constituted a BYOB advertisement.

    Thank God that idiotic law is finally dead and buried.

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