Dirty Bastard beer ban defies logic

Tuesday, April 24, 2012

When the Alabama Alcohol Beverage Control Board on April 19 banned the sale of Dirty Bastard beer in the state, it flew in the face of common sense and free-speech precedent.

The board’s contention was that minors needed to be protected from profanity. But from a First Amendment perspective, that’s a poor decision.

First of all, as the Associated Press reported, a wine called Fat Bastard is already available in the state. To allow Fat Bastard and disallow Dirty Bastard seems irrational, nonsensical and arbitrary.

Second, the beer ban goes against free-speech jurisprudence. The Alabama board should take a look at the 1999 ruling by the 2nd U.S. Circuit Court of Appeals in Bad Frog Brewery v. New York State Liquor Authority. In that case, New York liquor authority rejected the Bad Frog label, which featured a green frog giving the middle-finger gesture with the slogan: “He Just Don’t Care.” New York officials had said children needed to be protected from the offensive image.

The 2nd Circuit disagreed, even though it recognized that states had more leeway to regulate commercial speech than political speech:

“In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children’s exposure to such displays to any significant degree.”

The 2nd Circuit likened the rejection of the middle-finger label as akin to “the removal of a few grains of offensive sand from a beach of vulgarity.”

Similarly, some courts have rejected efforts to prohibit profane bumper stickers or license plates.

Like it or not, vulgarity exists in American society. Recall that more than 40 years ago, the U.S. Supreme Court suggested one response to those who were offended by a man wearing a jacket bearing the words “Fuck the Draft” in a Los Angeles County courthouse. Justice John Marshall Harlan said in Cohen v. California (1971): “Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes.”

Dirty Bastard beer may not be the most pleasant-sounding name, but banning the beer is a gross overreaction and an affront to the First Amendment.

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