Bad Frog Brewery v. New York State Liquor Authority

In Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998), Bad Frog applied to the New York State Liquor Authority for permission to display on its labels a "picture of a frog with the second of four unwebbed fingers extended in a manner evocative of a well known human gesture of insult." Id. at 90. The court was called upon to address an attempt by the New York State Liquor Authority to advance the state's interest in preventing exposure of children to vulgar displays by barring such displays from the labels of alcoholic beverages. Id. The court said that the Liquor Authority could not validly deny Bad Frog the right to display its label and explained: We do not mean that a state must attack a problem with a total effort or fail the third criterion of a valid commercial speech limitation. See United States v. Edge Broadcasting, 509 U.S. 418, 434, 125 L. Ed. 2d 345, 113 S. Ct. 2696 ("Nor do we require that the Government make progress on every front before it can make progress on any front."). Our point is that 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 District Court ruled that the third criterion of the Central Hudson test was met because the prohibition of Bad Frog's labels indisputably achieved the result of keeping these labels from being seen by children. That approach takes too narrow a view of the third criterion. Under that approach, any regulation that makes any contribution to achieving a state objective would pass muster. Edenfield v. Fane, however, requires that the regulation advance the state interest "in a material way." The prohibition of "For Sale" signs in Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 52 L. Ed. 2d 155, 97 S. Ct. 1614 (1977), succeeded in keeping those signs from public view, but that limited prohibition was held not to advance the asserted interest in reducing public awareness of realty sales. The prohibition of alcoholic strength on labels in Rubin v. Coors Brewing Co., 514 U.S. 476, 131 L. Ed. 2d 532, 115 S. Ct. 1585, (1996), succeeded in keeping that information off of beer labels, but that limited prohibition was held not to advance the asserted interest in preventing strength wars since the information appeared on labels for other alcoholic beverages. The valid state interest here is not insulating children from these labels, or even insulating them from vulgar displays on labels for alcoholic beverages; it is insulating children from displays of vulgarity. (Id. 134 F.3d at 100.)