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Beer And The First Amendment.

EDITOR’S NOTE: We apologize for some of the language used in this post. Normally, we don’t allow terms like this in this space, but try as we might, we could not think of a way that would allow us to convey the story without using the language. Long time readers know this is not what we do normally, but in this case, we felt we had to.

Flying Dog Brewery is a craft beer brewery out of Frederick, Maryland.

(The beer is not available in Florida, so this is not us pushing the brand.)

To put it politely, Flying Dog has a history of naming their beers with “interesting” names. (One such beer is called “Raging Bitch.”)

Their labels are created by illustrator Ralph Steadman. He too has a “unique” style.

Throughout their history, Flying Dog has battled governments, agencies and board over the names and artwork on their beers.

Previously, Flying Dog had challenged a ruling from the state of Michigan over the name of “Raging Bitch” beer when the ABC denied Flying Dog the right to sell the beer in Michigan because of its name. After Flying Dog challenged the ruling on First Amendment grounds, Michigan reversed their ruling.

This is part of the reason we are writing about the company. Somehow a craft brewery is involved with First Amendment fights.

Enter North Carolina who decided that Flying Dog’s latest beer “Freezin Season” would not be sold in the state.

(click for a larger image in a new tab)

Part of the label reads:

Remember what it was like to feel your finger? Us neither. Welcome to winter. You wake up, put on 6 pairs of underwear, then go outside to enjoy your 8 minutes of daylight.

So stack that firewood, crack open a Freezin’ Season, and tell seasonal affective disorder to go $%*# itself. Yeah, it’s cold outside. But inside, this warming winter ale always keeps the bonfire burning.

According to Reason.com:

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.

Once again, here is a government agency telling someone they can’t do, say or sell something simply because the agency doesn’t like it.

That’s the same theme we have been pounding with local governments and board who seem to think that First Amendment rights go out the window when some one on a board says “we don’t like you saying that.”

Next week, a Federal judge will decide whether the North Carolina ABC can impose it’s views on what is “inappropriate” and in “bad taste,” to prevent a legal product being sold.

As a side note, we were thrilled to see that Marc Randazza is representing Flying Dog Brewery.

We had crossed paths with Randazza years ago, and were impressed with his legal sense, his withering sense of humor, and his devotion to free speech and the First Amendment everywhere. There are groups out there doing the same thing (The Alliance Defending Freedom and the Institute for Justice to name two) and Marc Randazza is one of the best.

Our support of Flying Dog, Randazza, and other First Amendment groups not withstanding, how long will it take to get governments and petty dictatorial boards with taxpayer attorneys “advising” them that this type of Constitutional violation has to stop. How long will these people ignore the Supreme Court and the Constitution?

We suspect that the only way it will end is when governments, boards and attorneys are held personally accountable for those violations instead of taxpayer dollars footing the bills and the judgements.

But that isn’t going to happen so it will always remain a pipe dream for us.

Bottom line is that next Thursday, we’ll pop some popcorn and have an adult beverage in support of Flying Dog Brewery and wishing for a smack down of epic proportions from a judge.


Editor’s Note: While we were perusing the Flying Dog website, we came across some merchandise they sell.

This onesie caught our eye:

Everyone else can go home.

That’s the funniest thing we have seen in a long time.



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