Expression and Commerce, Ct'd

A few weeks ago, I talked about a case in New Mexico where a so-called Human Rights Commission levied a punishment against a bigoted commercial artist (aka a "photographer") for refusing to make a gay couple the subject of her work. I discussed how this case was a profound example of the problem with the Supreme Court's precedent allowing restrictions on supposedly "commercial" speech.

Today, thanks to Kip, I learned of another case that shows the problem of drawing the arbitrary line between "free expression" and "commercial speech" (and thus helping to prove the long-standing libertarian point that economic regulation must inevitably result in restriction of more widely-understood personal freedoms). It seems that a microbrewer based in the town of Weed, California has been placing bottle caps on his legalized psychoactive substance products (aka "beer") that contain the statement "Try Legal Weed."

It seems that in doing so, the microbrewer has run afoul of some taxpayer funded entity known as the Alcohol and Tobacco Tax and Trade Bureau. This obscure federal agency apparently banned "[d]rug references on alcoholic beverages ... in 1994." As a result, the agency has ordered this small business to stop selling its beers with the "Try Legal Weed" caps.

The brewer, who just ordered another 400,000 of these bottle caps (at a cost of $10,000), is not surprisingly appealing the ruling. The grounds for his appeal are that the caps are not a drug reference, and thus are not intended to mislead customers into thinking the beer is marijuana. He points out that his situation is no different from the only slightly better known beer slogan "This Bud's for you."

While I appreciate and fully support the grounds for the brewer's appeal, in some ways it makes the situation even worse. His appeal amounts to an acknowledgement that the agency would be on firmer footing if the bottle caps actually were a drug reference. This, to me, gets the situation exactly wrong, and inadvertently amounts to providing sanction for the concept that the government has the ability to regulate political statements about illegal drugs so long as those statements occur in a "commercial" context.

Imagine if, instead of simply being a humorous reference to the town where the beer is produced, the bottle caps were instead directly advocating that customers skirt the law and actually "try legal weed." The brewer's appeal, by arguing that his bottle caps are legal because they are not actually a drug reference, implicitly suggests that this obscure agency would be on firmer ground if the bottle caps actually were a drug reference, and thus were actually making a statement about the legal status of marijuana. In so doing, the appeal implicitly (if unintentionally) accepts the notion that such clearly political speech is subject to regulation as long as someone is trying to make a profit off of it. How far is it, really, from regulating political statements on beer caps to regulating political statements on mass-manufactured t-shirts?

This is not to say that I think Congress is on the verge of passing legislation prohibiting the manufacture and distribution for profit of pro-marijuana t-shirts. But it is to say that there is legally no reason to distinguish between beer caps produced for profit and t-shirts produced for profit.

To paraphrase a legendary quote: First they came for the "shock jocks," but I was not a shock jock....then they came for the bigoted artists, but I was not a bigoted artist....then they came for the bad-pun-making brewers....

Bonus absurdity: if, as the agency claims, "drug references on alcoholic beverages" are banned, doesn't this mean that labels on alcoholic beverages can and should be prohibited from discussing their alcoholic content? Before you dismiss this as absurd, consider that this same agency has also gone after advertising that says one beer is stronger than another.