Flying Dog's Raging Bitch' beer label sparks suit
First Amendment brew-haha' at center of Frederick firm's complaint
A provocative beer label and a debate about First Amendment rights are at the heart of a lawsuit filed by Flying Dog Brewery in Frederick against the Michigan Liquor Control Commission.
The lawsuit, filed Friday in U.S. District Court in Michigan's Western District, centers on the commission's decision in November 2009 to deny an application by Flying Dog to sell its Raging Bitch beer in Michigan because of its label. In July, the commission rejected Flying Dog's appeal, according to the suit.
Flying Dog seeks an order that the commission's decision is unconstitutional, as it abridges the brewery's right of free speech; an order mandating the issuance of a sales license in Michigan for Raging Bitch; unspecified compensatory damages from the commissioners; and attorney fees.
"Beer bottles should be regulated not by the expression of their labels, but by the character of their content," the plaintiffs state. "Regrettably, the Michigan Liquor Control Commission and its members have taken it upon themselves to control not merely alcoholic beverages, but speech as well."
The commission has the authority to disapprove any beer label submitted for registration "that is deemed to promote racism, sexism, intemperance or intoxication, or to be detrimental to the health, safety or welfare of the general public," said Sharon Martin, director of licensing for the Michigan Liquor Control Commission.
The commission is given full authority by the Michigan legislature to control all alcoholic beverage traffic in the state, Martin said, and commission members looked at the proposed label by Flying Dog "and did not feel it was appropriate for distribution and sale in Michigan."
"Flying Dog was given their due process," Martin said.
Alan Gura, a partner with Gura & Possessky in Alexandria, Va., which is representing Flying Dog, acknowledged the commission's rule but described it as "unconstitutional."
"The state has no interest in regulating the name of beer or censoring artwork on the beer label," Gura said. "The artwork is artistic expression, which cannot be regulated."
The label's artwork is by Ralph Steadman, who collaborated with journalist and author Hunter S. Thompson on several books. He worked with Flying Dog to produce illustrations for the brewery's corporate images, according to the suit.
Along with Steadman's drawing of a dog, the label reads, in part:
"Two inflammatory words ... one wild drink. Nectar imprisoned in a bottle. Let it out. It is cruel to keep a wild animal locked up. Uncap it. Release it ... stand back!! Wallow in its golden glow in a glass beneath a white foaming head. Remember, enjoying a RAGING BITCH, unleashed, untamed, unbridledand in heatis pure GONZO!! It has taken 20 years to get from there to here. Enjoy!" Ralph Steadman
There is no valid government role in naming or branding or any other expression related to beer, Gura said, "and it's not in their interest in choosing what beer should be called or what the artist can say on the label."
"The rule lacks any objective standards. ... That rule is flagrantly unlawful prior restraint on First Amendment speech," he said.
The Center for the Defense of Free Enterprise of Bellevue, Wash., is joining the case on Flying Dog's behalf "because the issues raised have a profound impact on the right to freely engage in the marketplace," Alan Gottlieb, president of the nonpartisan education and research organization, said in a statement.
Jim Caruso, Flying Dog's CEO and general partner, said Monday the issue comes down to freedom of speech and his brewery's longtime affiliation with Thompson and Steadman.
"When there's smoke under the door, the fire's not far behind with constitutional rights," Caruso said. "If you don't like the beer or the art, don't buy it. ... The state shouldn't decide."
Flying Dog, whose corporate headquarters are in Denver, ships about 900,000 cases per year worldwide to wholesalers, according to the suit. The beer is sold in stores, bars and restaurants.
Privately held Flying Dog declined to disclose revenues but sales increased 40 percent last year from 2009, spokeswoman Erin Biles said in an email to The Gazette.
The sale of the Raging Bitch beer also has been banned in New Hampshire, Biles said. And its Road Dog Porter is banned in Texas because its label has the company's slogan, which contains a profanity that was part of the original artwork that Steadman submitted to Flying Dog, she said.
Sales from craft brewers such as Flying Dog totaled $7.6 billion in 2010, up from $7 billion in 2009, according to information from the Brewers Association, a Boulder, Colo., trade group for U.S. brewing companies. Craft beer represented 4.9 percent of volume and 7.6 percent of sales in the total U.S. beer category.
As for the Flying Dog name, it comes "from a painting of a flying dog hanging in a Pakistani hotel, which brewery co-founder George Stranahan happened upon after a Himalayan climbing expedition," the suit states. "Appreciating the artwork's can-do spirit, Stranahan adopted this mascot and moniker for his brewery because it represents the idea that it is amazing what you can achieve if nobody tells you that you can't.'"