Case 3

Brief of Case 4.2

The brief of case 4.2, Bad Frog Brewery, Inc. v. New York State Liquor Authority appears in Exhibit 4.3

EXHIBIT 4.3 Brief of Case: Bad Frog Brewery, Inc. v. New York State Liquor Authority

Case Name, Citation, and Court

Bad Frog Brewery, Inc. v. New York State Liquor Authority

97-7949, 1998 U.S. App. LEXIS 525 (2d Cir. Jan. 15, 1998)

United States Court of Appeals, Second Circuit

Key Facts

Bad Frog is a Michigan corporation that manufactures and markets different types of alcoholic beverages.

The beverages feature labels a frog “giving the finger.”

Bad Frog applied to the New York State Liquor Authority (NYSLA) for brand label approval, required by state law before the beer be sold in New York.

NYSLA denied the company’s application because the label would be in plain sight in grocery stores where children of a tender age may be exposed to it.

Bad Frog filed a suit in a federal district court against NYSLA, asking for injunction against denial of the application.

The court granted summary judgment to the NYSLA.

Bad Frog appealed to the Second Circuit of U.S. Court of Appeals

Issue

Does the NYSLA’s rejection of Bad Frog’s label application demonstrate that its commercial speech limitation is part of an effort to advance valid state interest?

Holding

No. The U.S. Court of Appeals held that NYSLA’s ban on the use of Bad Frog’s label lacked a "reasonable fit" with the state's interest.

Court’s Reasoning

The U.S. Court of Appeals held that:

NYSLA did not adequately consider alternatives to the label ban.

Limitation on commercial speech purpose is to advance state interest, not remove every single aspect of offensive material and vulgarity.

It is plainly excessive to prohibit the manufacture’s labels from all use.

NYSLA has no extent to be concerned about children wandering throughout stores without parental supervision where alcohol is sold.

It is not the state’s interest to protect children from profane material and...