Case $1\mathrm{.}2$: Bad Frog Brewery, Inc. v$.$ New York State Liquor Authority

Bad Frog Brewery, Inc., sells alcoholic beverages with labels that display a frog making a gesture known as $$giving the finger.$$ Bad Frog$$s distributor, Renaissance Beer Co$.,$ applied to the New York State Liquor Authority $($NYSLA$)$ for label approval, required before the beer could be sold in New York. The NYSLA denied the application, in part because children might see the labels in grocery and conven$$ience stores. Bad Frog filed a suit in a federal district court against the NYSLA, asking for, among other things, an injunction against this denial. The court granted a summary judgment in favor of the NYSLA. Bad Frog appealed.

The U$.$S$.$ Court of Appeals for the Second Circuit reversed. The NYSLA$$s ban on the use of the labels lacked a $$reasonable fit$$ with the state$$s interest in shielding minors from vulgarity, and the NYSLA did not adequately consider alternatives to the ban. $$In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such dis$$plays from labels for alcoholic beverages cannot realistically be expected to reduce children$$s exposure to such displays to any significant degree.$$ Also, there were $$numerous less intrusive alternatives.$$

Notes and Questions

The free flow of commercial information is essential to a free enterprise system. Individually and as a society, we have an interest in receiving information on the availability, nature, and prices of prod$$ucts and services. Only since $1976,$ however, have the courts held that communication of this informa$$tion $($commercial speech$)$ is protected by the First Amendment.

Because some methods of commercial speech can be misleading, this protection has been limited$,$ particularly in cases involving in$-$person solicitation. For example, the United States Supreme Court has upheld state bans on personal solici$$tation of clients by attorneys. Currently, the Supreme Court allows each state to determine whether or not in$-$person solicitation as a method of commercial speech is misleading and to restrict it appropri$$ately$.$

Whose interests are advanced by banning certain ads? The govern$$ment$$s interests are advanced when certain ads are banned. For example, in the Bad Frog case, the court acknowledged, by ad$$vising the state to restrict the locations where certain ads could be displayed, that banning of $$vulgar and profane$$ advertising from children$$s sight arguably advanced the state$$s in$$terest in protecting children from those ads.What about if it was Bag Frog Breakfast Cereal? What types of things might the court want to know about the cereal?