Case

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

U.S. Court of Appeals, Second Circuit, 134 F.3d 87 (1998)

Brief Background Facts: Briefly indicate the reasons for the lawsuit.

Bad Frog is a Michigan corporation that makes and sells alcoholic beverages. One of their beverages displays a label with a frog “giving the finger.” Bad Frog’s distributor applied for the brand to be approved; required by NY State law before the beverage is sold. The NY State Liquor Authority (“NYSLA”) denied the application. Bad Frog filed suit against the NYSLA seeking an injunction against the denial. (An injunction is an order of the court for the defendant to do something, refrain from doing something, or to undo something. Here, Bad Frog would like the court to undo the denial).

Procedural Posture: One or 2 sentences describing where the case is in the litigation process.

The Court granted summary judgment. Bad Frog appealed to the U.S. Court of Appeals.

Issu e : One or 2 questions that is/are before the court. Concisely phrase, in question format, the essential issue(s) before the court.

1. Does the ban of Bad frog Brewery directly advance the governmental interest to protect children from vulgar and profane advertising?

2. Did NYSLA consider alternatives other than banning the label? In other words, is this the least restrictive means for NYSLA to protect the interests of children?

Rule: What law or rule did the court apply in deciding the issue(s)?

When faced with commercial speech limitation, a court should verify: (1) whether there is a substantial/compelling government interest in instituting the limitation; (2) whether the limitation directly advances that interest, and (3) whether the limitation is necessary to accomplish the government’s objective (are there other alternatives short of an outright ban?).

Analysis: Summarize the reasons for the court’s decision.

Although the NYSLA has a substantial/compelling interest to protect children from vulgar and profane language such as that contained in Bad Frog’s label, the outright ban on the label does not directly advance that interest. The court reasoned that barring such displays from labels on alcoholic beverages cannot realistically be expected to reduce children’s exposure to such displays to any significant degree.

Moreover, it is excessive to prohibit the label from all use in the interest of shielding children from vulgarity. It is plainly excessive to prohibit the manufacture’s labels from all use, especially since children do not ordinarily wander throughout stores where alcohol is sold without parental supervision. NY should perhaps focus on more on placing restrictions on locations where alcohol is sold.

NYSLA did not adequately consider alternatives to the label ban.

Conclusion: Did the court uphold/affirm the lower court’s decision? Was the case remanded to the lower court?

The Court of Appeals reversed the judgment of the district court and remanded the case for entry of judgment in favor of Bad Frog.