Free Speech

The Shutdown and the First Amendment

What happens if a commercial speech licensing scheme is on hold -- and thus the speakers can't speak -- because of the federal government shutdown?


Federal law requires brewers to get pre-approval for their beer bottle labels, apparently in order to avoid "various false, misleading, obscene, or misleading statements, and the disparagement of competitors' products." But though the pre-approval generally comes within three weeks, it's now on hold because of the government shutdown. The motion for a preliminary injunction in Atlas Brew Works, LLC v. Whitaker (D.D.C. filed Jan. 15, 2019) argues that this violates the First Amendment. (The case is being litigated by Alan Gura, who is famous mostly for his Second Amendment cases, but who handles many First Amendment ones as well.) An excerpt:

Americans' fundamental right to free speech requires no Congressional authorization. The government can shut down speech regulators. It cannot shut down the First Amendment. The lack of political will to operate what might be a valid restriction on protected speech is the government's problem, not a speaker's. The Framers would have recoiled at the notion that anyone would fear criminal prosecution for speaking, merely because Congress has not enacted a bill funding the operation of a content-based prior restraint on their speech.

Yet such is the predicament facing Washington, D.C.'s Atlas Brew Works. Atlas, a neighborhood production craft brewer, sits on forty barrels of The Precious One—a perishable, seasonal apricot-infused India pale ale that Atlas cannot label for interstate shipment. The federal government stands ready to prosecute Atlas should it ship The Precious One, because it has not approved the content of that beer's keg label. On the other hand, for lack of Congressional appropriation, the government cannot review Atlas's application for label approval. And this is not Atlas's only label pending approval. Atlas must be able to continue publishing new labels to remain in business. As the government would have it, however, prosecuting Atlas for speaking without a license is "essential." The processing of Atlas's request for permission to speak, not so much.

The situation is unacceptable. This Court may be unable to solve the political branches' budgetary standoff, but it remains in the business of securing fundamental rights. The bottom line is that Atlas suffers a categorical prohibition of its constitutionally-protected speech, as well as an indefinite content-based prior restraint on that speech. The Court should immediately enjoin the government from requiring that Atlas obtain a legally-unavailable license to exercise fundamental First Amendment speech rights….

The First Amendment secures the right to publish beer labels. At least in part, beer labels come within the First Amendment's protection because "information on beer labels constitutes commercial speech." Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995). "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish … even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment." Edenfield v. Fane, 507 U.S. 761, 767 (1993).

Atlas's consumers share the brewer's First Amendment interest in its beer labels. "If there is a right to advertise, there is a reciprocal right to receive the advertising …." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 757 (1976) (footnote omitted). "[That] interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue." Bates v. State Bar of Ariz., 433 U.S. 350, 364 (1977). Doubtless many consumers would prefer using Atlas's beer labels than listening to federal budget debates. The two activities might even have a symbiotic relationship.

This is not to suggest that the government may not regulate beer labels. But as precedent condemning beer label censorship attests, such regulations must meet First Amendment standards. See Rubin, supra, 514 U.S. 476; Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998); Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm'n, 597 Fed. Appx. 342 (6th Cir. 2015); Hornell Brewing Co. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993).

At least for now and for the foreseeable future, the COLA requirement's application to Atlas's beer labels cannot survive First Amendment scrutiny…. TTB's now-conceptual, inoperative licensing mechanism is irrelevant. Indeed, the licensing of Atlas's speech is itself a constitutional impossibility …. When an administrative process exists by which people may obtain relief from a prohibition, but Congress has not appropriated money to fund that process, the underlying prohibition is subject to constitutional challenge. See Schrader v. Holder, 704 F.3d 980, 992 (D.C. Cir. 2013) ("[w]ithout the relief authorized by [18 U.S.C. §] 925(c), the federal firearms ban will remain vulnerable to a properly raised as-applied constitutional challenge")….

"Traditionally, First Amendment questions arising in the arena of 'commercial speech' have occasioned scrutiny under the standard of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980)." "Under Central Hudson, protected speech may be regulated if the governmental interest is 'substantial.' Any such regulation must 'directly advance[] the governmental interest asserted.' When analyzing this requirement, the Supreme Court 'has commonly required evidence of a measure's effectiveness.' Finally, any regulation cannot be 'more extensive than is necessary to serve that interest,' a standard the government cannot satisfy 'if it presents no evidence that less restrictive means would fail.'" …

The government cannot argue that the current state of affairs reflects considered legislative judgment to advance any regulatory interest. When Congress enacted the FAA Act in 1935, it apparently assumed that someone would administer it. The FAA Act's licensing guidelines, and those found in the TTB's regulations, reflect the government's position in weighing the interests at stake. These do not prescribe a categorical prohibition, which went into effect as an unintended consequence of a political dispute wholly unrelated to beer labels. Atlas suffers from a prohibition of its protected First Amendment speech unsupported by any regulatory concerns about that speech….

Whatever the government's concerns with beer labels, those concerns led it to regulate, not to prohibit. No "careful calculation" supports the current prohibition on the publication of Atlas's beer labels in interstate commerce. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), is instructive. In that case, the Supreme Court accepted that the government has a substantial interest in preventing underage tobacco use, "but it is no less true that the sale and use of tobacco products by adults is a legal activity." In considering the constitutionality of restrictions on outdoor tobacco advertising, the Court offered, "[w]e must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products." Id. The state lost. "The breadth and scope of the regulations, and the process by which the Attorney General adopted the regulations, do not demonstrate a careful calculation of the speech interests involved." Id. at 562.

Even if government were permitted to conjure an interest in support of the present prohibition on beer label speech, that prohibition would only be "another case of 'burn[ing] the house to roast the pig.'" Sable Commc's of Cal., Inc. v. FCC, 492 U.S. 115, 131(1989) (quoting Butler v. Michigan, 352 U.S. 380, 383 (1957)). "[A] speech regulation cannot unduly impinge on the speaker's ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products." Lorillard, 533 U.S. at 565. The current prohibition bars Atlas from offering The Precious One on tap outside the District of Columbia, makes it impossible for Atlas to sell any of its planned new beers, and prevents Atlas from updating the labels for existing products. Regardless of the government's supposed regulatory interest, this prohibition goes too far….

Central Hudson left open the question of whether traditional prior restraint doctrine applies to commercial speech, suggesting in dicta that it "may not apply." Central Hudson, 447 U.S. at 571 n.13. The D.C. Circuit has held the question open as well, Pearson v. Shalala, 164 F.3d 650, 660 (D.C. Cir. 1999), but courts tend to apply the prior restraint doctrine to commercial speech. "[T]he prior restraint doctrine does play a role in evaluating the regulation of commercial speech." Nutritional Health Alliance v. Shalala, 144 F.3d 220, 227 (2d Cir. 1998); Desert Outdoor Advertising v. City of Moreno Valley, 103 F.3d 814, 818-19 (9th Cir. 1996) (striking down prior restraint on commercial billboards); In re Search of Kitty's East, 905 F.2d 1367, 1371 (10th Cir. 1990); but see Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 532-33 (6th Cir. 2012). The Fourth Circuit recently upheld a prior restraint on commercial speech not because the speech was commercial in nature, but because it was "likely false or misleading." Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., 700 Fed. Appx. 251, 264 (4th Cir. 2017).

The government cannot require Atlas to obtain a license in order to speak—a license aggressively reviewed for content under rules mandating some statements and forbidding others, as interpreted by the licensing authority—and then shutter the licensing office indefinitely. No one knows when the TTB will reopen. That question that can only be answered by reference to the stubbornness of the President and Congressional leaders in sticking to their respective positions regarding the construction of a wall on the Mexican border. The delay is not "specified," nor has it been "brief." If TTB opens tomorrow, Atlas would still have to wait perhaps another three weeks for a decision—or more, considering what would be TTB's substantial backlog. The commercial aspects of Atlas's speech should make no difference in the analysis. "Although the interests of the commercial speech at issue here may not equate with those of political speech, we agree that the special protections of the First Amendment justified the exercise of equitable jurisdiction in this case." Kitty's East, 905 F.2d at 1371 (footnote omitted). The Court cannot force the TTB to review Atlas's label, but it should lift the prior restraint….

NEXT: Thoughts on the Second Oral Argument in Knick v. Township of Scott

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  1. Kavanaugh is probably a lock for certatori, if t makes it that far. 🙂

  2. Personally, I find it very hard to imagine what possible legitimate interest the Federal government has in controlling the content of beer labels. If all it cares about is accurately reflecting the ingredients and allcohol content, it could do that with simple regulations which would not require some useless bureaucrat in D.C. spending his days reading and editing beer labels.

    1. Legitimate, not really any, but they do take upon themselves the task of making sure no wine is labeled such that it might appear to taste of a distilled spirit or cocktail. It’s pretty stupid. Here’s the code, (a)(9) is what I’m talking about.

      1. But again, regulations with post-hoc enforcement would seem to be adequate, requiring government pre-approval of labels would I think be total overkill.

        1. Let me save some Federal Bureaucrat some time in drafting regulations. I suggest the following:

          1. All labels on beer shall accurately disclose (by percentage, to 1 significant digit after the decimal point) the alcohol by volume of the product.

          2. All labels on beer shall accurately list all ingredients used in the brewing of such beer.

          3. Any brewer found to have mislabeled its beer by faling to accurately disclose the alcohol by volume and/or failing to accurately list all ingredients shall be guilty of false and misleading labeling.


          1. Let’s not deregulate by adding additional unneeded regulation.

            I’m not sure that the margin for error on calculating ABV for craft brewers is reliably +/- 0.1%. Also unpasteurized beers can also ferment a little more in the bottle adding additional alcohol.

            ABV is fine but maybe just requiring average ABV for that recipe, and don’t put the brewer in the regulatory and legal crosshairs by requiring accuracy down to a 10th of a percentage point.

            1. Maybe he meant +/- 10%.

          2. Oddly enough it used to be illegal for beer labels to disclose their ABV.

            1. Because beer drinkers might have different preferences in regards to ABV than the government had for them, beer drinkers had to be kept ignorant, lest they buy what THEY wanted, not what the government wished they wanted.

    2. The plaintiff here disagrees. “This is not to suggest that the government may not regulate beer labels. “

      1. Try to work on your reading comprehension skills, OldCurmudgeon. What you have quoted is NOT an admission that the government has a legitimate interest in CONTROLLING beer levels.

      2. Just because they’re not suggesting it at this time doesn’t mean they don’t believe it. This is just not the time to have that fight, since they don’t need to.

    3. Commerce Clause.

      I think Commerce Clause should be very limited in use but interstate alcohol distribution is clearly under the enumerated power of Congress to regulate.

      1. What is permissible under the Commerce Clause may yet be impermissible under the First Amendment. Federal law must be above the floor, but below the ceiling.

      2. Yeah, which given the 1st amendment, would not include regulating what’s said on beer labels.

        The regulation is on sketchy enough grounds if they’re prompt in approving them. Any hold up, and I’d say it become straight up unconstitutional. Just as though the government cited the shutdown as a reason to stop approving firearms sales.

    4. Maybe executing the 21st Amendment’s bit about not importing intoxicating liquors into states that want to regulate it?

      1. Depends; Is the label soaked in alcohol?

        1. Heh. My thought is more that the label is part of federal harmonization to facilitate state liquor import laws.
          Just a thought though.

      2. Except that the 21st Amendent is a source of STATE power to regulate the importation of alcohol. It says NOTHING about the Federal government’s role in that regulation. Kind of a reach, there, Sarcastro, even for you.

        1. But it makes violating state law on this matter a federal offence.

          1. Huh? Where in hell do you get THAT?

            1. Section 2 of the Federal 21st amendment:

              “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

              Violating state law in this regard is actually a constitutional violation, one of the few ways private citizens can violate the Constitution.

  3. If either side is relying on the irritation factor of this (among many other things) it should immediately be thrown out as hampering speech to hurt one’s enemies by pressuring them is completely out the window.

  4. I’m never going to be as good at legal writing as Alan Gura.

  5. This seems weak from a 1A point of view.

    The govt isn’t restricting the company’s right to say anything – they can advertise all they want.

    Nor is the govt specifically restricting this particular speech (selling beer) – they just haven’t gotten around to completing the process.

    If only somehow the govt (the part that’s shut down) would re-open…

    It sucks that many people are being held hostage over an issue that doesn’t concern this particular issue.

    1. Yeahnope. “Not getting around to approving” is the same as “prohibiting”. It *might* be temporary prohibiting, but it’s still prior restraint.

      1. It’s not prior restraint or not… instead, they seem to be saying that there is a 1st amendment based obligation to speedy conclude reviews.

        A win on that point would require significant changes in how government works… particularly if the standard is a shutdown-relevant “few weeks.”

        1. If you’re telling somebody they can’t publish something *before* they’ve published it, rather than letting them go head, and punishing them if it’s a violation, then it’s prior restraint.

          The government gets a lot of (unjustified) slack on 1st amendment violations, if the speech is called “commercial”, but as Pearson v Shalala established, even commercial speech is 1st amendment protected.

          At some point, a delay is a denial.

          1. “t some point, a delay is a denial.”

            I tend to agree e.g., the IRS-Teaparty scandal. But…my point is that if that triggers at a mere few weeks delay, then it’s going to have a huge impact. Permits often take months under ordinary circumstances.

    2. “Oh, sorry. The Sheriff hasn’t gotten around to approving your concealed carry permit yet. Yes, we know that your wife’s ex-boyfriend has threatened to kill you both, but the Sheriff’s really busy with his re-election campaign right now. And I understand that you submitted the fingerprints and references and paid the applicable fees, but he just hasn’t found the time to review them. Maybe in a month or two.”

    3. Actually, apedad, it’s your own view of the First Amendment that seems incredibly weak – like thinking that it’s OK to require a “Mother may I” to Big Brother before speaking, that requiring a license to speak from the Government is not a serious First Amendment issue.

  6. So just use one of the labels from their other products.

    1. Or label it as a type of product not under TTB’s jurisdiction. I’m sure there are many other things the contents could be described as. It’s not like the recipients won’t recognize it, given all the publicity there’s been, plus the fact that there’s only 40 kegs of this animal feed, floor cleaner, soft drink, or whatever.

      1. Right, so instead of being charged with using an unapproved but accurate label, where you stand a fair chance of prevailing in court, they get charge with false labeling, and are doomed to lose.

        No, that would be a pretty stupid thing to do.

        1. How can it be false labeling? If “XXX” is your brand of beer, you decide what counts as “XXX”. It has no meaning outside what you give to it. There are no standards of identity for floor cleaner, either, so how could labeling it as a floor cleaner be illegal?

  7. Answer from the court: “It’s not constitutionally protected speech because it’s for commercial purposes.”

    Or, the shorter version: FYTW

    1. Which is why it’s important to keep pushing this idea:

      The Fourth Circuit recently upheld a prior restraint on commercial speech not because the speech was commercial in nature, but because it was “likely false or misleading.”

      to remind government its only interest is in fraud. That doesn’t necessarily imply a prior restraint power on commercial speech, but obviates the assumption (truthful) commercial speech isn’t protected speech because commercial.

  8. I think the logic here is only partially valid. Once you accept that the restrictions are facially valid, I think you also have to accept that the plaintiff can’t expect immediate turnaround, as there has to be some reasonable time for the government to respond to an application. After all, courts don’t generally offer same-day turnaround either. So how much time is reasonable?

    It’s not obvious that a government shutdown lasting a couple of weeks is enough to make things unreasonable, so it’s not clear that plaintiff’s claim has ripened yet. But if weeks turn into months, the delay may become enough to cross the reasonableness threshold.

  9. Nice to see Americans demanding their rights. The shutdown highlights how licensing schemes are actually blanket prohibitions on ordinary conduct with a mechanism to sell you back your rights. The longer the shutdown, the clearer this fact becomes. Hopefully courts finally see it. Licensing you back your freedom doesn’t legitimize taking it away in the first place.

  10. Contrary to most press coverage, federal employees are getting paid for their non-work. Where a federal department is falling short of its responsibilities, they need to declare those employees and their function ‘essential’ and bring them back.
    Federal wages are being accrued in arrears, just like every other employee in this country is currently accruing wages but the employer is in arrears. After the work is done for some period, a week, month, whatever, the work is tallied, and a payment is made. Though not government, I will see my January earnings at the end of February. That’s just how accounts receivables works.

    1. Gasman: And their payment in arrears was due last Friday. We don’t know when they will see their payments. Stupid employer in arrears!

  11. This is the sort of hypertechnical analysis that makes lawyers look shady and libertarians look venal. Framing food labeling regulations as a 1A issue categorically weakens the real purpose and protections of free speech. No, thank you, I have little sympathy for protecting some imaginary right of commercial operations to hide or mislead consumers, especially when it comes to food.

    To the extent the shutdown is hurting commerce, that’s a problem, but the correct answer is to vote for and endorse politicians that can do their job competently, not to call for allowing harm to the public in the name of profit.

    1. “You can’t defraud your consumers” is monumentally different than “Before you can even print a word to your consumers, we have to approve it first.”

    2. I disagree. Requiring people to ask permission to exercise an enumerated right is the issue here. If the company puts out labels that are fraudulent or in some other way illegal they can be punished for their bad acts when they do. Prior restraint is not the answer.

    3. That’s a ridiculous position, obviously favoring regulation over the rights of people to speak, and to conduct commerce without government interference.

      You seem either oblivious to, or simply disdainful of the the situation the brewer is in, in this case. Telling him to go to the ballot box to resolve an issue that is of immediate concern, to one’s livelihood, and considering that beer in kegs is a perishable product is ludicrous. Time is of the essence! He may lose money, or go out of business, if he can’t label and ship his product, today!

      You also presume that without the government watchdog, the brewer will certainly defraud his customers.

      Your statement that that the brewer is arguing for “some imaginary right of commercial operations to hide or mislead consumers, especially when it comes to food” is beyond the pale. You assume evil intentions on the part of the brewer, where there is no reason in evidence to support that.

      This reminds me of a case a long time ago in NYC where a meter maid ticketed a car parked at a broken meter. The city argued that because they couldn’t meter the spot, it could not be used. The motorist argued that the city’s inability to properly maintain the meter does not deprive citizens’ right to park in their spot – that’s right, the spot belongs to the people, not the government. The motorist prevailed.

    4. (cont.)

      I say the brewer should just go ahead and label and ship their beer, and let the chips fall as they may. It would indeed be tragic if the shut-down government could find the resources to prosecute him but not approve of his labels. I would further move that the pre-approval process be done away with, as it is an affront to the 1st Amendment.

      1. ThePublius: “I say the brewer should just go ahead and label and ship their beer, and let the chips fall as they may.”

        I’d say this too — except that there’s an imbalance of power and resources. If he ships without the prior permission, the agency will come after him, possibly fining him many thousands of dollars, possibly costing him his business license. How long would that case go on? How much would it cost him even if he prevailed? Could his business actually withstand it?

        The Wyoming rancher Andy Johnson accrued $20 million (!) in fines from the EPA for constructing a stock pond on his property, despite the fact that stock ponds were exempt bodies, before — two years later — he prevailed and was only forced to plant some willow trees around the pond and keep cattle off parts of it for a while. And he had a lot of support from other people. Who will come to our brewer’s aid, except (as someone here joked) perhaps Brett Kavanaugh?

        As far as I know, the Sackett family, whose victory in 2012 in Sackett v EPA — after the EPA declared their land a wetland in 2007, and which played a role in Johnson’s victory, is still going on. It was in 2016.

        Johnson wins agaisnt the EPA

        Years after win, couple still battle EPA to build dream home

        1. Stupid lack of an editing function!

          The last sentence /should/ tell people that the Sacketts won in 2012, the case was remanded back to the district court, and it was still unsettled as of 2016. I.e., they still couldn’t build their house on the lot. All they won at the Supreme Court, in a 9-0 decision, was the right to go to court before their fines ($30K+ per day) mounted to the heavens.

          1. Yes, I hear you. But that depends on whether someone decides to prosecute. I would advise them (though I’m not a lawyer) to:

            Create a label that closely copies a previously approved label and only changes cosmetic features and essential differences between this and the previous product
            Notify the board that approves labels of the new label and your intention to ship
            Notify the entity that would prosecute you of your intention and request that they exercise prosecutorial discretion in light of the shutdown
            ship it!

            It’s remarkable the federal government is willing to look the other way on so many much more serious transgressions, but would hamper commerce in this way.

  12. I had no idea that it was illegal for beer to have ABV on the label until 95. I wonder why they did that.

    1. They didn’t want people going looking for the highest alcohol beer.

  13. That the Federal government has an office tasked with (perhaps other things) pre-approving commercial speech is a symptom that the government is too big, bloated. Errors or intentional false statements on food ables should be dealt with after the fact.

    1. So where do you drawn the line?

      No certifications required for doctors or pilots? (Hey if the patient/passenger dies, then we deal with that after the fact!)

      1. That’s a ridiculous retort. We are talking about the first amendment here, not professional licensing. And, as far as I am aware of this issue, we’re not talking about certifications, either, we are talking about a government board that approves or disapproves of beer labels. On kegs, in this case, mostly sold in a business-to-business transaction.

  14. Again, the problem here is that if the plaintiff’s argument is valid, it must be unconstitutional for first amendment claimants not to get same-day service from the judiciary. If waiting–to-get-around-to-it, no-resources-at-the-moment sorts of excuses are invalid for the legislature and executive, they ought to be equally invalid for the judiciary.

    But it’s a known fact that courts sometimes wait months, even years, to issue opinions even in First Amendment cases. If it’s constitutional for the judiciary to do this, why isn’t it constitutional for the executive?

    1. Because judges give judges a lot of slack they don’t give anybody else.

  15. Mr. Volokh, I eagerly encourage you to contemplate an analysis of: The Shutdown and the Second Amendment.

    Alan Gura asserts (regarding the First Amendment), “The situation is unacceptable. This Court may be unable to solve the political branches’ budgetary standoff, but it remains in the business of securing fundamental rights.” None of our constitutional rights can be denied or suspended simply because the government fails to perform. It cannot shut down our Second Amendment unless the amendment is abolished constitutionally (even in California).

    If I wanted to purchase a firearm, time required to process paperwork, background check, etc., could be delayed indefinitely by the shut down. Government can regulate the purchase of firearms but not prohibit firearms with respect to the Second Amendment.

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