Free Speech

Should You Lose Your Liquor License Partly Because You Rudely Criticized Police?

Yes, said San Antonio police officers, arguing that a bar's license shouldn't be renewed -- "those remarks show what kind of people Bottom Bracket's owners really are and that they should not be allowed to operate a bar."

|The Volokh Conspiracy |

In Texas Alcoholic Beverage Commission v. Baines Bradshaw & Smith LLC, 2017 WL 6554588 (Tex. Off. Admin. Hgs. Dec. 12), the Commission was seeking to block the renewal of the Bottom Bracket Social Club's liquor license, on the grounds that "the place or manner in which Bottom Bracket would operate the premises would be against the general welfare, health, peace, morals, and safety of the community, and the public sense of decency."

Part of the Commission's argument was that Bottom Bracket had illegally sold alcohol during a previous suspension; the Administrative Law Judge agreed that this happened, but concluded that under the circumstances this called only for an extra 20-day suspension. ("[T]he ALJ finds credible Mr. Bradshaw's testimony that he and the other co-owners misinterpreted the suspension order and did not intend to violate it. This is also supported by Agent Cantrell's testimony that every other time during the suspension that he checked on Bottom Bracket, it was closed.") There were also various alleged problems at the bar in the past, but the ALJ concluded that the earlier suspension had already adequately punished the bar owners, and that "There is no evidence of other problems with Bottom Bracket since the suspension period, which suggests that the owners of Bottom Bracket learned lessons from their suspension."

But the ALJ also noted another element of the Commission's argument:

In his … testimony, Detective Moffett emphasized that one of the other members of the vice unit observed that one of Bottom Bracket's owners wrote "fuck the police" and "fuck the TABC" on a Facebook post not long after the August 2014 incident. According to Detective Moffett, those remarks show what kind of people Bottom Bracket's owners really are and that they should not be allowed to operate a bar.

Detective Moffett added that he told Mr. Bradshaw after the August 2014 incident that he was not going to tolerate any more adversarial actions or comments. He testified that he informed Mr. Bradshaw that instead of issuing a verbal warning or writing a citation, he would take Mr. Bradshaw into custody for any violations found at Bottom Bracket. At hearing, he provided the example that he arrested Mr. Bradshaw because he found a locked exit door at the bar. According to Detective Moffett, Mr. Bradshaw did not react appropriately to his arrest, but instead tried to point out his arrest to customers and stated it would not hurt his business. Yet Detective Moffett also testified that Mr. Bradshaw did not resist arrest.

The ALJ concluded that he "does not view statements that express negative views of SAPD or TABC, even profane statements, to be the basis for denying a permit. Nor does the ALJ view objecting to (but not resisting) custodial arrest for a violation that would otherwise have been the basis for a citation as the kind of behavior that warrants the refusal of a permit based on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency." And he added:

[The State Office of Administrative Hearings] has no jurisdiction to address constitutional claims, and Bottom Bracket has not made one. That said, the ALJ is concerned about the request to deny a permit based on speech that criticizes police. See, e.g., City of Houston v. Hill (1987) ("the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers"); United States v. Poocha (9th Cir. 2001) (yelling "fuck you" or "that's fucked" at police officers during an arrest constituted protected speech).

A well-founded concern, it seems to me.

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15 responses to “Should You Lose Your Liquor License Partly Because You Rudely Criticized Police?

  1. That’s about as much of a benchslap as an Administrative Law Judge can make.

  2. Those remarks show what sort of people the San Antonio police are: The sort of people who provoke rude and profane criticism against themselves. It’s evidence that those cops are inimical to the general welfare, health, peace, morals, and safety of the community, and therefore should be denied continued government authorization to act as police officers.

    1. That’s cute. But in reality the San Antonio police (as demonstrated in this instance) hardly stand out from those of many other jurisdictions in their attempt to shut down speech and punish its use.

      1. But they do stand out in their ability to let people escape from closets and then shoot little kids in their own homes.

        1. “But they do stand out in their ability to let people escape from closets and then shoot little kids in their own homes.”

          Not to defend SAPD – they’re acting like whiny little brats in the matter that is the subject of the post – but the thing involving escaping from the closet and shooting the kid in his home was the handiwork of the Bexar County Sherriff’s Department, not the SAPD. None of that event even happened in San Antonio. So it’s not really reasonable to count that one against SAPD.

          You want to nail SAPD, go take a look at the case of the wrongly-convicted and executed Rueben Cantu……..

    2. I’m not surprised as this occurred in the Progressive Plantation San Antonio with Progressive Elitist Masters & Uncle Tom Overseers ruling over the Proletariat Serfs. Note that most Progressive Plantations have been controlled by Progressives, mostly Democrats although some Republicans like TX House Speaker Straus (Progressive Republican San Antonio).

  3. many questions raised here.

  4. Promote this judge.

  5. Ugh, well I know it’s a EV post about the 1A and the ALJ can’t really fix it, but holy crap the standard applied is total gibberish.

    If there’s one agreement we can make between those that are (nominally) “pro/anti-regulation”, it’s that regulations and their embodied standards should be clear and objective.

  6. Silly San Antonio cops… Don’t they know the only acceptable suspension of a business license in regards to speech is the utter non acceptance of all LGBT matters.

  7. WOW! An ALJ who actually understands and cares about the First Amendment! Quite a rarity. Too bad that it makes him overqualified for elective office.

  8. > [The State Office of Administrative Hearings] has no jurisdiction to address constitutional claims, and Bottom Bracket has not made one.

    What if Bottom Bracket had made such a complaint? It seems to me that even a state administrative tribunal should take constitutional limits seriously. Unlike some European countries, the US does not have a specialised constitutional court. In the US, all officials (indeed all citizens) are expected to interpret the law in the light of the constitution, which they are (often? usually? always?) sworn to uphold.

    Of course they don’t always do that, which is why different parts the society, including branches of officialdom, hold each other to account. I don’t see why this office should be different. And even if you took the view that judicial review of legislation was somehow owned by particular courts, that’s not what we are talking about here.

    1. IIUC Administrative Law Judges are limited and not considered an Article III court under the Constitution.

  9. Great article. Couldn’t be write much better! Keep it up!

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