Free Speech

North Carolina Banned This Beer Because Bureaucrats Dislike the Label

Now they'll have to explain to a federal judge how this isn't a violation of the First Amendment.

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Alcohol regulators in North Carolina have banned Flying Dog brewery from selling one of its beers in the state due to a label that's been deemed "in bad taste."

Flying Dog CEO Jim Caruso, who has tangled with beer label bureaucrats—and beaten them—in other states, says the North Carolina Alcohol Beverage Control (ABC) Board needs to crack open a copy of the U.S. Constitution. The North Carolina ABC's decision to prohibit sales of Flying Dog's Freezin' Season Winter Ale over the beer's label design "seems like a blatant violation of the First Amendment to me," says Caruso (who is a donor to the Reason Foundation, which publishes this website)

Later this week, a federal judge will have a say. Flying Dog has filed a lawsuit and is seeking an injunction to prevent the North Carolina ABC from blocking the distribution of the beer in the state. A hearing on the injunction is scheduled for September 9.

The offending label—like all Flying Dog beers—contains a distinctive cartoon image by illustrator Ralph Steadman, whose work with the Maryland-based brewery dates back to its roots in the gonzo-lands near Aspen, Colorado. It's not clear exactly what the state's regulators object to—though the naked, humanoid figure on the beer's label does sport a small appendage between its legs. Caruso says he suspects that "tail-like thing" is what triggered the ban.

Officially, however, all Flying Dog has been told is that the label is "inappropriate" and "in bad taste." That is all it takes for North Carolina to prohibit the beer from being marketed, sold, and distributed. The North Carolina ABC did not return requests for comment on Tuesday.

"The regulation is, on its face, in constitutional 'bad taste,' as it is in clear violation of the First Amendment," attorneys for Flying Dog, including veteran First Amendment lawyers Greg Doucette and Marc Randazza, argue in court documents. They say banning the beer label is an unconstitutional viewpoint-based restriction on speech, similar to restrictions that the U.S. Supreme Court has repeatedly struck down.

One of those cases is Matal v. Tam, in which the Supreme Court ruled that the federal Patent and Trademark Office (PTO) could not prevent all-Asian dance-rock band The Slants from trademarking its name, even if the name violated PTO rules against disparaging "persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." Restrictions on commercial speech must serve a "substantial" government interest and must be "narrowly drawn," the high court held in Matal.

Since that 2017 ruling, Matal has been cited by courts that have overturned government agencies' bans on blasphemous personalized license plates, obscene-sounding clothing brand names, supposedly "illegal" Mexican food chains, and more.

"But, the North Carolina government thinks that it can get away with calling something 'in bad taste' and thus restricting commerce?" Randazzo wrote in an email to Reason. "We're not OK with that."

This is not the first time that North Carolina's beer regulators have attempted to censor a product being sold in the state. WECT Channel 6, based in Wilmington, North Carolina, reported in 2019 that the state ABC had blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board's sensibilities. Among the "inappropriate" products banned from the state are beers with names like "Daddy Needs His Juice," and "Beergasm."

Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewing Company that its "Polygamy Porter" could not be sold in the state because "polygamy is illegal." But the board also banned a beer named "Kissing Cousins" despite the fact that it is literally legal to marry your first cousin in North Carolina.

Perhaps alcohol regulators shouldn't be deciding what can and can't be sold in the state based on the silly assumption that beer branding will encourage people to engage in certain behaviors—as if anyone is making decisions about how to live their lives based on the content of beer labels. Is this a problem in other states with less aggressive branding police?

This also isn't the first time Flying Dog has gone to bat for free speech. The brewery's "Raging Bitch" beer was banned by Michigan in 2009 for having a name like "Raging Bitch." After a lawsuit challenged that ban on First Amendment grounds, Michigan's regulators put their tails between their legs and allowed the beer to be sold. Caruso continued to press the case in federal court and, in 2016, they won on the merits of the case—and used the damages won to launch a new pro–free speech legal center.

The new lawsuit in North Carolina, Caruso tells Reason, "is about defending the First Amendment against petty bureaucrats who want to censor whatever they personally dislike."

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  1. I’m pretty sure the First Amendment is not implicated here since you have no right to manufacture, distribute or sell alcoholic beverages. The manufacturing, distribution or selling of alcoholic beverages is a privilege granted by the state and they are free to put whatever restrictions they please on that privilege. This is why it was a mistake to leave economic liberty out of an express mention in the Bill of Rights. All your rights go right out the window as soon as money is involved.

    1. Cause the gov and courts obviously give a fuck about the bill of rights.

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    2. Well, that’s sort of true. The 21st Amendment gives the states a lot of leeway on liquor laws.

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    3. The Bill of Rights does mention the right to Property, which includes the right of production and exchange. The Constitution also forbids States from infringing on the obligations of contracts, and the Reconstruction 14th Amendment could have been cited against this alcohol regulation too.

      So there’s a whole lot of infringement going on from NC’s Commie Puritan ABC Board. Alas, the subsequent 18th and 21st Amendments made things all schizzy and here it is haunting us.

      1. So, presumably this means no enforced cake baking and no problem with private businesses controlling contractual arrangements such as who sits where at the lunch counter.

        1. Sure.

          It doesn’t mean I’ll patronize them or like them or even brighten their door, but private businesses that don’t take government subsidies or government contracts do have that right to discriminate for any or no reason.

          Likewise, a LGBTQ+ business may refuse a preach-in from Westboro Baptist Church and Patti Labelle can refuse to cater a Klan rally.

          “I believe in life’s rich tapestry, and all it gives to me.
          I believe in life’s rich tapestry, and what it takes from me.”
          –Modern English.

          1. “It doesn’t mean I’ll patronize them or like them or even brighten their door”

            Let people make up their own minds. Return private property laws. you might be surprised the stupid government affectations people ignore.

    4. That’s incorrect.

      Commercial speech has less protection than noncommercial speech under the First Amendment, but the First Amendment is certainly implicated. I agree with your insinuation that commercial speech being second-class speech is wrong as a policy matter.

      What you’re describing is alluding more towards public forum doctrine, which is about what the government may restrict in a medium for communication of its own creation (the First Amendment still applies). An even further horizon is: what may the government restrict when it constitutes its OWN speech. The 2015 Texas custom license plates case is the last word I read on that – at that distant threshold, the government may restrict the content of license plates, but only because they constitute government speech. If it was merely a public forum, the speaker would likely win their First Amendment claim. That Texas case was also 5-4.

      1. There are some weird consistencies that must be reconciled here, and on both sides of this issue. Claiming 1A speech protection for a corporation means giving government sanctioned organizations the same rights as an individual. You can’t say then that a corporation has the right to free speech while being treated differently under tax law. Do corporations therefore have the right to worship as they please? Do they have the right to vote? Many more. To say otherwise is picking and choosing.

        But the bigger question here is can you as an individual actually create a new person with separate individual rights from the creator of the corporation? As manager of the corporation, does that then give you double the authority? Can you force employees to do your political will, worship or other actions on behalf of the corporation so long as they are being paid? Can I form a corporation to slander someone and thus avoid the personal legal responsibility because it’s the corporation that spoke as a separate individual, not me as an individual.

        Conversely, if the corporation doesn’t then have the same rights as people, how then does 1A have any constitutional right to free speech?

        1. Uh, tax law treatment is not a trade off for First Amendment rights.

          Unless I can evade all taxes by not complaining about politics. Is that an option?!

          As to your confusion: a corporation is an artificial person. That’s what the root words mean. It has the powers and features of a legal person that it is given.

          Finally, corporate status is irrelevant to any point I was making. It could just as easily be a natural person making the commercial statements at issue.

    5. So you’re saying that “speech” does not include artwork on a product being sold. Though the courts have held that artwork is speech. The government (which is the sole subject being limited by the first amendment), has told them they can’t sell their product because the artwork on it (speech) is offensive to them.

      But you believe this isn’t a first amendment issue.

      What I’m inferring here is that you want the government to protect you from anything you might find offensive. You support the nanny state.

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    6. Obviously, you didn’t have Civics in school, much less are a lawyer.

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  2. considering only adults are allowed to buy beer they are also old enough to be allowed to view images they find repulsive

    1. While I think the regulators are very solidly in the wrong on this issue, that argument against their decision won’t fly. While only adults may buy beer, children are routinely allowed in stores and restaurants where they might see the beer can. Generally-applicable prohibitions against pornography can be constitutionally applied to the outsides of beer cans even when it would be entirely legal for adults to view those same images.

      That’s not something that should be enforced by the ABC, though, and it certainly shouldn’t be on a standard as vague as “in bad taste”. But there is a viable argument that the images on the outside of the bottle should be measured against a different standard than the contents on the inside.

      1. Perhaps the Flying Dog Company could cover each of their cans with an opaque condom beer coozie, so that adults could keep their wares discreet.

        Then, when the Tricycle-Motors are away, the Ass-Haulers can play. 🙂

      2. they sale magazines that are more risque at the chashier stand where kids are waiting. they often do cover up a portion of the magazine when they are more risque no reason the beer can’t do that and it would probably draw more people. it would be a marketing gimmick.

    2. Few adults want to view images of Nick.

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  3. The new lawsuit in North Carolina, Caruso tells Reason, “is about defending the First Amendment against petty bureaucrats who want to censor whatever they personally dislike.”

    Geez, then why even be a petty bureaucrat?

      1. Barley even wort the effort?

        1. The bureaucrats are singing “John Barleycorn Must Die” while stuck in Traffic getting to the Flying Dog Brewery.

        2. Wort – is that a bad beer pun?

          1. Jay Ward, the Creator of Bullwinkle & Rocky, Mr Peabody & Sherman, and all the rest of his cartoon characters, doesn’t have anything on the Reason Commenters.

  4. >>Caruso says he suspects that “tail-like thing” is what triggered the ban.

    I’m not offended by art, but the tail-like thing was intentional and does not look like a tail … most marketing is good marketing this is no different.

    1. Yeah. I obviously support Caruso in this, but why lie? It’s clearly an outie belly button.

      1. This banning of the label by the NC ABC Board is erasure and State-enforced discrimination against Trans-Men and Phallically-Challenged Cis-Men!

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  5. I thought approving beer labels was a federal thing. That there was like literally one guy who did it all. Never heard of labels needing state approval.

      1. Both. Governments of different levels always stack on laws and taxes, never consolidate.

        1. That’s because bureaucrats, like all invasive species, vociferously exploit all available resources leaving little if any freedoms for the local inhabitants. Naturally in a tiered system of fiefdoms at the federal, state, county, & city levels it’s only natural for the littluns to emulate the biguns. If cities could get away with having a beer label monitor they’d absolutely do it provided they could avoid having to face their neighbors when buying beer at the market.

  6. If this art was on canvas or a wall mural, could the state ban it?
    The XXI amendment gives states the right to control transportation and importation of liquor into the state, not to regulate what label art goes on a beer can.
    Some of this craft brew art seems to be trying to revive the beer can collecting hobby. Sort of like Lichtenstein putting out zillions of stamp designs.

    1. Rev. Joe Chambers, a local Crusading Holy-Roller in Charlotte, NC, would probably accuse the beer can of portraying the Greek Titan Prometheus tripping on blotter acid and thus worshipping homoerotic false gods.

    2. Lichtenstein and stamps, some with heads…I see what they were doing there. 😉

  7. This happened in California several years back. a beer brewery in the town of Weed named their beer after the town, wink wink nudge nudge know what i mean, anyway the state said you can’t name your beer after an illegal substance, weed. They sued and the state lost and I bought their beer in support of their effort. actually good beer

    1. They should have told the State it was named after Crabgrass, and maybe the crabby regulators would empathize.

  8. Did regulators ferment on this a bit or did they hops right to it? Hopefully the brewery puts up stout resistance.

    1. This regulation has me so pissed, I.P.A. Watney’s Red Barrel-full of Angry Orchard.

  9. I used to be single. Then I saw a can of Polygamy Porter, and now I have five wives. Help, I can’t afford five wives!!!

    1. You’d have to have drank a bunch to get that low. 😉

  10. North Carolina Banned This Beer Because Bureaucrats Dislike the Label

    Unless the label said “0% alcohol”, I can’t support banning beer.

  11. Local community standards apply here, and this also commercial in nature which means less protections are available, which means either take out the appendage or you will not be protected by the First Amendment.

    1. Local community standards apply here

      Bullshit.

    2. Bond. Nanny Bond. 1A > community standards

    3. That may be what the legal precedents of Case Law say, but it is sure not right by the Natural Rights ideal embraced by many of The Founding Fathers, the Abolitionists, and modern libertarians.

      And to paraphrase the beer commercial:

      “What’s More Natural Than Natural Rights?” 🙂

        1. Thank you Chumby! Coming from the Reason Comments Groaner-Pun-Master, that means so much!

          I’ve sat on that one for years, waiting for a philosophical dialogue on Natural Law and Natural Rights, but it never happened. I thought I was a man out of my time, even in libertarian circles.

          It took a beer can controversy to bring it to the surface! And I didn’t even have to drink it!

  12. The Gonzo Imperial Porter is great stuff.

    And fuck the North Carolina ABC with a rusty sawblade.

    1. Pop-Up Video Factoid from A NC Homey:

      The NC ABC Board not only controls the labelling of beer and wine, but also is the sole legal seller of Liquor in North Carolina. So basically, the NC ABC Board is like the State Store in Old Soviet Union. Hence, the reason I call them Commie Puritans.

      Remember, In Old Soviet Union, “Freezin’ Season” is vacation in Siberia and alcohol consumes you!

      1. That hardly makes them unique. Lots of states control liquor sales some like NH, VA, & AL directly own and run the liquor stores. Others like VT the stores are contracted by the state.

        Can’t say I like the VT model as it allows liquor distribution to be kept in the family. Kind of like the way RI hands out regional alcohol distributorship licenses but hey at least they’re not ‘state controlled’.

        1. Very true. New Hampshire having State-run liquor stores is a real shocker.

          So I hear, Oklahoma has liquor in retail stores. So the patrons can get as high as the corn and look the elephant in the eye. 😉

  13. Wow. So I guess Thirsty Dog’s “Old Leghumper” porter is verboten too?

    1. Is that a beer with Saw Palmetto , Zinc, and Horny Goat Weed?

  14. On WJZY FOX 46, Charlotte, NC, they had a story on this.

    The TV station didn’t see fit to digitize the man’s naughty bits and the station has a religious, Conservative Christian demographic, so why is it an issue with the NC ABC Board?

  15. I like the label, but the 21st amendment gave the states pretty much total control over alcoholic beverages.

    1. So take the alcohol out of it, and everybody’s happy. They get to market their art on a non-alcohol label, they get to sell their beer with another label, and a bureaucrat can crow about frustrating somebody.

      1. That just encourages the bureaucrats. And if what amounts to soft drinks are in the nakey man beer can, someone will accuse Flying Dog of corrupting the youts with sex!

    2. True, they have a lot of control over alcohol. It doesn’t give them sway over art on labels just that the information on the label is accurate.

      Maybe Flying Dog can come up with a cloyingly bittersweet ale and call it “Nanny C’s ABC (Ale By Committee)” complete with a pic of an old schoolmarm cracking a ruler across the hand of a pupil.

  16. “FREEZIN SEASON WINTER ALE X.X% Alcohol”
    What percent alcohol is that?

    1. 10.10 in Roman Numerals? Or maybe the alcohol content is so high it’s XX-Rated.

    2. Serious question?

      Varies from batch to batch and, maybe, state to state.

      It’s a label proof they drawn up and submit for approval before they brew up the beer.

  17. So, we have to allow obscene commercial speech, but we need to ban controversial political speech from social media – that’s perfectly fine?

    Because, er, that’s what the ratifiers of the 1st amendment intended?

    1. Not controversial speech, dangerous speech. Like terrorist coordination. Or, in the case of Trumpers, terrorist coordination.

      1. You said terrorist coordination twice!

        1. He likes terrorist coordinati9n.

  18. Cultural cons will think “Hm, but I want this banned, so it sure seems like the first amendment doesn’t prohibit it.”

    Nobody has the political empathy necessary for democracy or any peaceful society anymore. The ends justify the means since the ends are, supposedly, all more important than upholding democratic and pluralistic principles.

    You have to be willing to tolerate things you don’t like, even things you abhor, if you want to live peacefully around other equally free people. Libertarians should know this most of all, but curiously they tend to be some of the most prickly and fearful (culturally conservative) of all.

    You have to be comfortable with the fact that the free society you envision will produce all sorts of outcomes that will horrify you. Maybe even high taxes on billionaires.

    1. Maybe even high taxes on billionaires.

      … or terroristic Trumpers.

      Between your two posts, I’ve got to wonder if you’ve missed a dose of the medication that quiets the voices in your head.

      1. She is batshit crazy.

  19. Existing precedence in Federal Court will eviscerate the North Carolina ABC “label approval” requirement.

  20. Alcohol sales in NC are determined by counties. As a compromise to permit cities like Charlotte, Raleigh and Asheville to sell alcohol, each county decides if it wants to be Dry, Beer and wine only, or also county-permitted ABC stores. Within a county, individual cities have the option to override the county permissions. These decisions are made by local referendums.

    The state ABC warehouses decide what to stock, then the ABC store(s) in each county decide which of the state approved products they will carry.

    It is an incredibly hodgepodge set of regulations full of lots of arbitrary enforcement with little or no accountability or right to appeal.

  21. They could just change their effed up label.

    Yeah, I have a “constitutional right” to wave my d1ck around in public…..should I do it?

    Idiots if you ask me.

    1. Technically yes but I think if you tried you’d be arrested as a sex offender because all the laws are written by a bunch of prudes and I’d guess not many people would buy it as speech. Put up a marble statue of David with a free willie and you’ll absolutely get the ok from the courts so why should a beer can be any different.

      1. At the least the ABC should be forced to state exactly what it finds in bad taste.

  22. Totally dig Steadman’s art work when I first saw them in Hunter S. Thompson’s Fear and Loathing In Las Vegas.
    As for the North Carolina ban why don’t they ban intermarriage…oh maybe some of them like their cousins young, y’know 13 or 14 maybe ….no older than 16 though.

    1. You’re a little late. The governor signed SB35 a couple weeks ago that raises the minimum age to 16.

      1. For the record, this here fellow from North Cack-A-Lacky doesn’t know anyone who has taken advantage of this NC marriage law. I can’t even stand family tag lines or the tag line “teen” used in porn. Please don’t think we’re all like that or even most of us.

        1. That’s just it. Almost nobody gets married that young and you get a lot of people who just like to pick on southern states because they like to suppose themselves superior. If it was true concern ‘for the chitlin’ they’d be piling on Massachusetts which has a minimum age of 12 for females and 14 for males. I guess it’s perfectly acceptable to discriminate based on sex there.

          1. IIRC, California, Illinois, and New York have very young marriage ages and the latter two allow first cousins to marry. It is definitely not confined to the South.

            Really, these should have been hot-button issues long before same-sex marriage. Child marriage and marriage within family lines, even if they only exist in law books, are like rips in time that our civilization forgot to mend.

  23. ban a beer, but let all the criminal illegal aliens in nc state??….sure nc. HOW FAR MY STATE HAS FALLEN TO stupid!

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  25. I just assumed the guy was peeing on the fire, and that was the problem.

  26. I don’t much care for the label but it’s still better than any of Hunter’s works, and they go for up t $500k each.

  27. FWIW and IMO Raging Bitch is the most interesting and totally over the top IPA I’ve quaffed in a long time. Not every IPA lover agrees but I’ve never served it to anyone who was indifferent to its charms. Try it if you’re able. F NC.

  28. “The offending label—like all Flying Dog beers—contains a distinctive cartoon image by illustrator Ralph Steadman,”

    I doubt regulators like Ralph Steadman any more than they like the 1st Amendment.

  29. I’m in NC and years ago I brewed my own beer which I labeled “Piss and Vinegar.” I gave some of it away and the donees would always call back for more.

    Hmmmm. Maybe I should tool up with a big stainless steel brew pot… and monetize the tasty P&V recipe. My beer had a kick to it and was quite delicious with your meat and your fish, as long as you didn’t beat your fish.

    Well, my hat’s in the ring for free speech, so I’m betting that the snooty old puritans trying to keep Flying Dog beer off the market will lose and be humiliated. Gooooooo, Marc Randazza!

    How about an IPA with a cat delicately sinking her fangs in the arm of her owner… on the label. Call it “Snapping Pussy.” Wouldn’t that attract sales?

  30. 1. The label, like thermometer data for the past 120 years, “denies” Glowball Warmunism and 1961 Soviet Sharknado predictions.
    2. The thing brings to mind Fear and Loathing, ’nuff said?
    3. Caruso is an objectivist ownlife thoughtcriminal who believes 2+2 is 4 and does not communicate in Newspeak.
    4. Both Czarist-Communist Russia and These States made all beer illegal from 1919 to 1925 and then some, like God intended, so there!

    1. Greetings, Hank! No conversation on alcohol would be complete without you!

      1. You are correct that “Freezin’ Season” is a living refutation of “Global Warming” and “Sharknado,” though it could be portraying the “Nuclear Winter” some say could have happened from an ICBM exchange.

      2. The artist is the same, Ralph Steadman. I first thought of Pink Floyd’s The Wall album cover, but that was by Gerald Scarfe. There are similarities in style.

      3. Caruso is a brave and principled man, but Orthodox Objectivists might shun him for not making a beer can in Romantic Realist style.

      4. Would not surprise me. Alcohol is “Bourgeois Decadence” that Lenin, Stalin, Trotsky, and the boys would have eliminated if they could to make way for “The New Soviet Man.” (Note the similarities between “The New Soviet Man,” “The New Aryan Man” and Jesus’ “New Creature” and the inhabitants of “The New Jerusalem” of Revelation.)

  31. He could agree to omit the appendage and cover the torso on the next “printing” of the cans. Could a judge say that the appendage is “Marginally pornographic?” It is actually a subjective judgement whether the can is in fact porn or not. Seems to me a judge could call it either way.

  32. But where is the Swedish Bikini Team?

  33. At what point do we start wondering why Reason is dedicating so much coverage to such trivialties while America is facing unprecedented tyranny of a far more serious sort?

    If blackshirts were rounding up all of the Republicans and loading them onto trains, I suspect Reason’s cover story would be about a cop too-forcefully arresting a drunk driver after he killed three people.

    1. One can and should care about both. It takes a Panopticon to catch it all, but defending Liberty is an all-of-single-piece endeavor.

  34. Or how about a beer named after one of Ian Fleming’s most delicious characters: From the move GOLDFINGER…Pussy Galore.

    I’d buy that beer just to be able to feast my eyes on the brand.

    Jeez, ABC Board, you are one old herd of condescending bitches.

  35. I guess we can celebrate the small victories?

  36. Do they still bottle ‘Black Label’, or has it been reflagged as ‘African-American Label’?

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