Nick Krieger (@nckrieger):
Michigan Administrative Rule 436.1611 provides that no beer may be sold in Michigan unless it has been approved for sale by the Michigan Liquor Control Commission (LCC). Rule 436.1611 requires, among other things, that the LCC approve a beer’s labeling. Flying Dog, a craft brewery located in Maryland, makes and distributes “Raging Bitch,” a Belgian-style IPA. The Raging Bitch label depicts a wild dog with stylized female genitalia and breasts. The label also refers to Raging Bitch as “in heat.”
Flying Dog sought the LCC’s approval to sell Raging Bitch in Michigan. In 2009, the LCC denied the application because it determined that the beer’s label was offensive. Flying Dog sued, arguing that the LCC Commissioners had violated its First Amendment right to free speech.
The United States District Court for the Western District of Michigan dismissed Flying Dog’s First Amendment claims on the ground that the LCC Commissioners were entitled to both quasi-judicial and qualified immunity for their actions. Flying Dog Brewery v Mich Liquor Control Comm, 870 F Supp 2d 477 (WD Mich, 2012).
Earlier today, the United States Court of Appeals for the Sixth Circuit reversed the District Court’s decision (http://www.ca6.uscourts.gov/opinions.pdf/15a0173n-06.pdf). The Court of Appeals ruled that the LCC Commissioners were not entitled to quasi-judicial immunity; the Court further held that the Commissioners were not entitled to qualified immunity because “any reasonable state liquor commissioner” should have known that, in general, “banning a beer label based on its content would violate the First Amendment . . . .” The Court sent the matter back to the District Court to determine whether the LCC did, in fact, violate Flying Dog’s clearly established First Amendment rights in this case.