By David L. Hudson, Jr.

A beer maker in Colorado, with help from the American Civil Liberties Union, recently asked the state supreme court to reverse a lower court ruling prohibiting the beer label “Good Beer, No Sh__.”

Broadway Brewing Co. launched Road Dog Ale in 1995 as a beer to be distributed in Colorado only. It sought to obtain prior approval from state authorities for a label designed by renowned British artist Ralph Steadman.

The Colorado Liquor Enforcement Division of the state's Department of Revenue rejected the label, citing its rule against obscene and indecent messages.

To protest the censorship of its label, Broadway then substituted the wording “No Censorship,” which was eventually approved.

Broadway Brewing challenged the denial of the “Good Beer, No Sh__” label in state court, contending that it violated its First Amendment free-speech rights.

In March 1999, trial Judge John W. Coughlin rejected Broadway Brewing's constitutional challenges, finding the policy against obscenity and indecency passed the Central Hudson test for commercial speech regulations.

“This Court feels that the government has every right to protect against vulgarity and to protect against what is unfit to be seen in public,” Judge Coughlin wrote.

The judge also reasoned that the ban on obscene and indecent expression directly advanced the government's interest in shielding the public from vulgar material. Finally, he determined that the regulation was not too exten-sive but “absolutely essential to serve the interest of preventing vulgarity in a public arena.”

Judge Coughlin also rejected the brewing company's contention that the policy was too vague. “While the regulation could have been expressed in better terms, when you apply the standards to the facts of this case, it cannot be said to be unconstitutional.”

Colorado later revised its regulation to pro-vide that all beers, including intrastate-only beers, obtain label approval from the federal Bureau of Alcohol, Tobacco and Firearms.

In July 2000, the Colorado Court of Appeals, without a written opinion, dismissed the appeal as moot in part because the state authorities no longer claimed the right to ap-prove or disapprove of Broadway's labels.

On Oct. 31, Broadway Brewing petitioned the Colorado Supreme Court to review the decision. Broadway argued in its petition that the case is not moot because “the new regulation merely changes the identity of the censor.”

“Colorado courts can also issue a declaratory judgment regarding the past censorship,” Broadway Brewing argued.

Broadway Brewing also asked the Colorado Supreme Court to determine whether “the Colorado Constitution requires a special standard for commercial speech.” The brewer cited a 1989 Oregon Court of Appeals case, Northwest Advancement, Inc., for the proposition that “under the Oregon Constitution, commercial speech is afforded the same protection as non-commercial speech.”

Finally, Broadway Brewing argued that the Colorado high court should take the case to determine “whether the government may regulate commercial speech -- whether by prior restraints or post-expression sanction -- for the purpose of purging expression that is offensive but not obscene.”

In 1998, the U.S. Court of Appeals for the Second Circuit rejected the New York State Liquor Authority's censorship of a label from a New York brewery containing a cartoon frog making a finger gesture.

The Second Circuit determined that state officials had a substantial interest in protecting children from vulgarity, but that the prohibition against the bird-flipping frog only made a “minute contribution” to the state's interest and thus did not directly advance that interest.

In Bad Frog Brewery, Inc., the Second Circuit wrote that “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.”