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

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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

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