Distributor asks state high court to end prohibition of ‘vulgar’ beer label

Thursday, November 9, 2000

A beer distributor has petitioned the Colorado Supreme Court to
reverse a 1999 trial court ruling supporting state liquor officials’ ban of the
beer label “Good Beer, No S—.”

In 1995, Broadway Brewing Co. launched Road Dog Ale for exclusive
distribution in Colorado. The brewing company had to obtain prior approval for
the label, which was designed by British artist Ralph Steadman.

The Colorado Liquor Enforcement Division of the state’s Department of
Revenue rejected the label, citing its rule against obscene and indecent

To protest the state agency’s decision, Broadway then substituted the
words “Good Beer, No Censorship,” which was eventually approved.

Broadway Brewing challenged the denial of the “Good Beer, No S—”
label in state court, contending that the decision violated their First
Amendment free-speech rights.

In March 1999, trial Judge John W. Coughlin rejected Broadway
Brewing’s constitutional challenges, finding the policy against obscenity and
indecency passed the U.S. Supreme Court’s test for commercial-speech

“This Court feels that the government has every right to protect
against vulgarity and to protect against what is unfit to be seen in public,”
Coughlin wrote. “It is unseemly and indecent to use the word ‘shit’ in public.
The fact that it is often used does not change the fact that it is still vulgar
and indecent to use the word.”

Coughlin also reasoned that the ban on obscene and indecent expression
directly advanced the government’s interest in shielding the public from vulgar
material. Finally, the judge also determined that the regulation was not too
extensive but “absolutely essential to serve the interest of preventing
vulgarity in a public arena.”

Coughlin also rejected the brewing company’s contention that the
policy was too vague. “While the regulation could have been expressed in better
terms, when you apply the standards to the facts of this case, it cannot be
said to be unconstitutional.”

Colorado later revised its regulation to provide that intrastate-only
beers obtain label approval from the federal Bureau of Alcohol, Tobacco and

Last July, the Colorado Court of Appeals, without a written opinion,
dismissed the appeal as moot in part because the state authorities no longer
claimed the right to approve or disapprove of Broadway’s labels.

On Oct. 31, Broadway Brewing petitioned the state high court to hear
Broadway Brewing, LLC v.
Broadway argues in its petition that the case
is not moot because “the new regulation merely changes the identity of the
censor” from a state to federal agency.

Broadway Brewing also asks the Colorado Supreme Court to determine
whether “the Colorado Constitution requires a special standard for commercial
speech,” citing a 1989 Oregon case for the proposition that “under the Oregon
Constitution, commercial speech is afforded the same protection as
noncommercial speech.”

Finally, Broadway Brewing argues that the Colorado high court should
take the case to determine “whether the government may regulate commercial
speech — whether by prior restraints or post-expression sanction —
for the purpose of purging expression that is offensive but not obscene.”

In 1998, a three-judge panel of the 2nd U.S. Circuit Court of Appeals
rejected the New York State Liquor Authority’s censorship of state brewery’s
beer label containing a cartoon frog extending its middle “finger.”

The 2nd Circuit determined in Bad Frog
Brewery, Inc. v. New York State Liquor Authority
that state
officials had a substantial interest in protecting children from vulgarity, but
that the prohibition against the “bird-flipping” frog only made a “minute
contribution” to the state’s interest and, thus, did not directly advance the
state’s interest.

“A state must demonstrate that its commercial speech limitation is
part of a substantial effort to advance a valid state interest, not merely the
removal of a few grains of offensive sand from a beach of vulgarity,” the 2nd
Circuit wrote.

Mark Silverstein, legal director for the American Civil Liberties
Union of Colorado and attorney for Broadway Beer, says the Colorado Supreme
Court should take the case to correct a clear case of censorship.

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