Ban of Dirty Bastard Beer Sets Uncomfortable Precedent

May 1, 2012
By

by Betsy Gomez

In April, the Alabama Alcohol Beverage Control Board banned the sale of Dirty Bastard beer statewide because of the language used on the beer’s label. Beer and wine are common commodities on Alabama store shelves, and the beer was banned because of concerns over children seeing the language used on the label. The ban, while not applied to all consumer products, sets an uncomfortable and dangerous precedent with regard to the display of merchandise in Alabama.

The ban on Dirty Bastard beer was passed despite previous approvals for the sale of a wine called Fat Bastard and another beer called Raging Bitch. The approval of these products was reviewed at the time Dirty Bastard was banned, but the board decided not to take action.

David Hudson, a First Amendment scholar writing for the First Amendment Center, reviewed the ban and its implications, writing:

The board’s contention was that minors needed to be protected from profanity. But from a First Amendment perspective, that’s a poor decision.

First of all, as the Associated Press reported, a wine called Fat Bastard is already available in the state. To allow Fat Bastard and disallow Dirty Bastard seems irrational, nonsensical and arbitrary.

Second, the beer ban goes against free-speech jurisprudence. The Alabama board should take a look at the 1999 ruling by the 2nd U.S. Circuit Court of Appeals in Bad Frog Brewery v. New York State Liquor Authority. In that case, New York liquor authority rejected the Bad Frog label, which featured a green frog giving the middle-finger gesture with the slogan: “He Just Don’t Care.” New York officials had said children needed to be protected from the offensive image.

The 2nd Circuit disagreed, even though it recognized that states had more leeway to regulate commercial speech than political speech:

“In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children’s exposure to such displays to any significant degree.”

The 2nd Circuit likened the rejection of the middle-finger label as akin to “the removal of a few grains of offensive sand from a beach of vulgarity.”

You can read the rest of Hudson’s commentary here and an Associated Press article about the ban here.

The mention of comic books in the 2nd Circuit court’s 1999 decision brings to light an interesting paradox in the case of Dirty Bastard beer. Should attempts be made to ban the display of comic books with titles and covers that some would consider vulgar — for example, based on title alone, let’s consider popular series such as Hellboy, Dicks, and Bastard!! — the bans would invariably fail due to First Amendment protections.

Still, the precedent set by Alabama’s alcohol board is disturbing and indicative of the attitudes that many retailers in the state face — attitudes that could be detrimental to the display of comics for older teens and adults. Any attempt to protect minors from mild profanity becomes a dangerous game that only ends in censorship or self-censorship.

Founders Brewing Company, the manufacturers of Dirty Bastard beer, will appeal the decision. According to Free the Hops, an organization that advocates for specialty beer companies in Alabama, Alabama’s alcohol board has already reconsidered their ban and requested that Founders resubmit their beers for consideration.

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Betsy Gomez is the Web Editor for CBLDF.