Flying Dog Wins Free Speech Case

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Maryland’s Flying Dog Brewery has finally won an important free speech case that could impact how beer products from around the country are marketed and advertised.

Flying Dog, widely recognized for its expressive and sometimes controversial product graphics drawn up by the famed Gonzo illustrator Ralph Steadman, originally tried to register its popular “Raging Bitch” Belgian IPA in Michigan, in 2009.

At the time, the Michigan Liquor Control Commission (MLCC) said no, banning the label on grounds that it was offensive. The agency claimed the beer — which features a controversial depiction of a dog with exposed genitalia — was “detrimental to the health, safety, or welfare of the general public.”

Now, after years of appeals and lawsuits, the United States Court of Appeals has sided with Flying Dog and reversed a 2012 ruling from a U.S. District Court that had granted the MLCC immunity from a Flying Dog lawsuit. This latest ruling means the state’s commissioners could be held financially responsible for violating the brewery’s First Amendment rights.

In a 64-page opinion, Circuit Judge Jane Stranch cited a number of cases in support of overturning that 2012 ruling, most notably Bad Frog Brewery v. New York State Liquor Authority (1998), a separate case related to vulgar beer labels.

“By the time the Administrative Commissioners banned Flying Dog’s beer label in 2009, the clear line of Supreme Court commercial speech precedents… should have placed any reasonable state liquor commissioners on notice that banning a beer label based on its content would violate the First Amendment,” wrote Stranch. “Consequently, we disagree with the district court’s determination… and set aside the grant of qualified immunity to the Commissioners.”

By overturning the 2012 decision, Flying Dog will possibly be able to recuperate damages from the loss of sales during the injunction period.

“Let this be another lesson to the politically correct crowd. There’s no free ride for violating Americans’ free speech rights,” said Flying Dog’s attorney Alan Gura, of Gura & Possessky, PLLC, in a press statement. “In 21st Century America, officials cannot ban words, artwork and poetry they dislike. Illegal censorship causes real harm, and Michigan’s liquor commissioners will now be made to pay real money for the damage they’ve done.”

Jim Caruso, Flying Dog CEO, called the ruling “invigorating,” adding he hopes it will set a precedent to benefit other breweries, wineries, and distilleries in other states as well.

“It’s taken a few years, but now appointed bureaucrats are accountable for imposing their personal agendas and prejudices on the public,” he said, “and for committing the crime of violating Flying Dog’s right to Freedom of Speech.”

The case has been remanded to district court for further proceedings consistent with the new ruling.

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