Commercial speech precedent clearly favors a beer importer in its legal battle with Maine alcohol regulators who banned sales of "Santa's Butt Winter Porter" and two other beers because the labels feature “undignified or improper” illustrations.

Shelton Brothers of Belchertown, Mass., specializes in hand-crafted beers from Europe and, for the label of the British-made “Santa's Butt” product, chose to show St. Nick from behind, his ample posterior wedged into a beer barrel. The illustration, apparently, is a visual pun -– a barrel of that size is known as a “butt.”

Maine's Bureau of Liquor Enforcement didn't see much humor in it, however, and barred the beer under a rule which states that “advertisements of liquor shall not contain any undignified or improper illustrations.” Regulators also couldn't swallow the labels for “Les Sans Culottes” from France and Belgium's “Rosé de Gambrinus.”

In a complaint for injunctive relief filed Nov. 30, Shelton Bros. challenges the ban as a “content-based prior restraint” that “goes beyond any substantial government interest.” The federal Bureau of Alcohol, Tobacco and Firearms has approved the labels, and New York state withdrew its initial objections to them.

“Maine has decided to say: 'Well, Maine is different. People here in Maine can't see Santa's butt,'" Daniel Shelton, owner of the importer, told Court TV.

So far, the state has only said that the Santa label was rejected because it might appeal to children, and the other two went too far in their depictions of bare-breasted women. But it's hard to imagine how Maine can do a better job of justifying its ban than New York did in a case involving a Michigan brewer's Bad Frog products.

Under the U.S. Supreme Court's Central Hudson test, a restriction on commercial speech must directly advance a government interest and must not be “more extensive than is necessary to serve that interest.”

In banning Bad Frog because of a label featuring a frog “giving the finger,” New York regulators cited the interest of protecting children from vulgarity. But the 2nd U.S. Circuit Court of Appeals ruled in 1998 that the ban “cannot realistically be expected to reduce children's exposure to [vulgar] displays to any significant degree.”

“[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 court concluded in Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87.

The limited step of keeping Santa's butt and some bare breasts off beer shelves would be similarly ineffectual in accomplishing Maine's anti-vulgarity goals.

By Matthew Heller
12/10/06