United States Court of Appeals,
Second Circuit, 1997.
134 F. 3d 87.
Bad Frog Brewery, Inc (Bad Frog) was a company that makes and sells alcoholic beverages in 1997. By that time, they designed labels for their beverages products that were displaying a drawing of a frog making the gesture of “giving the finger”. Bad Frog sought for permission, as required by state law, to use the label on bottles of its beer products. The New York State Liquor Authority (NYSLA) denied Bad Frog’s application because they believed that the label could appear in a grocery or convenience stores and expose to children. Moreover, Bad Frog filed a suit in a federal district court against the NYSLA for denying its application. The court summary judgment in favor of the NYSLA; however, Bad Frog appealed to the U.S Court of Appeals for the 2nd Circuit.
Does a label with a bad frog with the third finger in the upright position convey any information or necessary to accomplish its objective to represent the product under the First Amendment of Commercial Speech protection?
The U.S Court of Appeals for the Second Circuit reversed the decision of the district court and concluded with a judgment in favor of Bad Frog.
The NYSLA’s ban on Bad Frog’s labels lacks a “reasonable fit” with the interest in shielding minors from vulgarity. The court found that NYSLA’s decision of denying the label was under-inclusive in protecting children from vulgarity, because banning labels for beer would not significantly reduce children’s exposure to vulgarity. The court ruled that the interest of the label was substantial. Yet there are many different ways for vulgar displays throughout the society, banning labels from alcoholic beverages cannot realistically be expected to reduce the chance of exposure to children in any ways. Moreover, NYSLA’s concern about chances of harmful exposure of the Bad Frog labels...