Bad Frog Case Study

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Bad Frog Brewery, Inc. v. New York State Liquor Authority
134 F.3d 87 (1998)

Copyright 2002 Lawrence O. Gostin. No claim made to original government works

Doc. 11134087

BAD FROG BREWERY v. NEW YORK STATE LIQUOR AUTH., 134 F.3d 87 (1998)

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BAD FROG BREWERY, INC. PLAINTIFF-APPELLANT v. NEW YORK STATE LIQUOR AUTHORITY, ANTHONY J. CASALE, LAWRENCE J. GEDDA, EDWARD F. KELLY, INDIVIDUALLY AND AS MEMBERS OF THE NEW YORK STATE LIQUOR AUTHORITY, DEFENDANTS-APPELLEES

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
134 F.3d 87 October 22, 1997, Argued January 15, 1998, Decided

«90 » JON O. NEWMAN, Circuit Judge: A picture of a frog with the second of its four unwebbed "fingers" extended in a manner evocative of a well known human gesture of insult has presented this Court with significant issues concerning First Amendment protections for commercial speech. The frog appears on labels that Bad Frog Brewery, Inc. ("Bad Frog") sought permission to use on bottles of its beer products. The New York State Liquor Authority ("NYSLA" or "the Authority") denied Bad Frog's application. Bad Frog appeals from the July 29, 1997, judgment of the District Court for the Northern District of New York (Frederic J. Scullin, Jr., Judge) granting summary judgment in favor of NYSLA and its three Commissioners and rejecting Bad Frog's commercial free speech challenge to NYSLA's decision. We conclude that the State's prohibition of the labels from use in all circumstances does not materially advance its asserted interests in insulating children from vulgarity or promoting temperance, and is not narrowly tailored to the interest concerning children. We therefore reverse the judgment insofar as it denied Bad Frog's federal claims for injunctive relief with respect to the disapproval of its labels. We affirm, on the ground of immunity, the d ismissal of Bad Frog's federal damage claims against the commissioner defendants, and affirm the dismissal of Bad Frog's state law damage claims on

Public Health Law and Ethics: A Reader Copyright © 2002 Lawrence O. Gostin

BAD FROG BREWERY v. NEW YORK STATE LIQUOR AUTH., 134 F.3d 87 (1998)

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the ground that novel and uncertain issues of state law render this an inappropriate case for the exercise of supplemental jurisdiction. Background Bad Frog is a Michigan corporation that manufactures and markets several different types of alcoholic beverages under its "Bad Frog" trademark. This action concerns labels used by the company in the marketing of Bad Frog Beer, Bad Frog Lemon Lager, and Bad Frog Malt Liquor. Each label prominently features an artist's rendering of «91 » a frog holding up its four-"fingered" right "hand," with the back of the "hand" shown, the second "finger" extended, and the other three "fingers" slightly curled. The membraneous webbing that connects the digits of a real frog's foot is absent from the drawing, enhancing the prominence of the extended "finger." Bad Frog does not dispute that the frog depicted in the label artwork is making the gesture generally known as "giving the finger" and that the gesture is widely regarded as an offensive insult, conveying a message that the company has characterized as "traditionally... negative and nasty."1 Versions of the label feature slogans such as "He just don't care," "An amphibian with an attitude," "Turning bad into good," and "The beer so good... it's bad." Another slogan, originally used but now abandoned, was "He's mean, green and obscene." Bad Frog's labels have been approved for use by the Federal Bureau of Alcohol, Tobacco, and Firearms, and by authorities in at least 15 states and the District of Columbia, but have been rejected by authorities in New Jersey, Ohio, and Pennsylvania. In May 1996, Bad Frog's authorized New York distributor, Renaissance Beer Co., made an initial application to NYSLA for brand label approval and registration pursuant to section 107-a(4)(a) of New York's Alcoholic Beverage...
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