Did that headline make you do a double take? Did it pique your interest?
Because you’ve never seen that word used here before? Because it’s edgy? Designed to grab your attention? Pushes the envelope? Intentionally provocative?
In one form or another, those questions are at the core of a fight between Flying Dog Brewery (a Colorado company with a brewery in Maryland) and the Michigan Liquor Control Division dating back to 2009. When the Liquor Control Commission denied Flying Dog a license to sell beer named “Raging Bitch,” Flying Dog cried foul, alleging violation of its first amendment rights. Here’s the label (which had already been approved in numerous other states).
Ultimately, Flying Dog filed suit. Although the Commission reversed its decision three months later and granted a license, Flying Dog moved forward with it’s lawsuit. At the time, Flying Dog issued a strongly worded statement which included the following:
“We’re glad that the people of Michigan are now free to decide for themselves whether Flying Dog’s beer labels are, like the beer, in good taste. Our lawsuit forced the Liquor Commissioners to see at least some of the light. But the litigation won’t end until the Commissioners accept responsibility for the damage they’ve caused by violating the First Amendment . . . . ”
Oh, and “to recover damages from the loss of sales under the rule,” too.
Flying Dog first applied for a license to sell Raging Bitch in Michigan in September, 2009. A subcommittee of the five member liquor control commission denied the request “because the name, text and the drawing on the label, taken as a whole, promotes sexism and is detrimental to the health, safety, or welfare of the general public” under Michigan law, according to an affidavit filed in the later lawsuit.
Prior label approvals demonstrated the Commission wasn’t just a set of prudes. The Commission had already approved Flying Dog’s Doggie Style Classic Pale Ale, In Heat Wheat Hefeweizen and Old Scratch Amber Lager. As for “Raging Bitch,” the Commission found the term to be a gender-specific insult used to denigrate women, despite Flying Dog’s argument that it had no further meaning than a reference to the dog appearing on the label. Read the label text to the left of the artwork and see what you think.
Fast forward to March, 2011. Flying Dog filed suit in United States District Court alleging the Commission’s rules were an unconstitutional prior restraint on free speech and the denial of a license to sell Raging Bitch caused them significant damages. Following briefing and oral argument on Flying Dog’s request for a preliminary injunction, the Commission issued an order reversing their earlier decision and granted a license to sell Raging Bitch. More significantly, the Commission also repealed the labeling rule which led to the problem in the first place.*
As mentioned above, however, the reversal did nothing to tame the rage. Yet, the lawsuit which continued was no longer about free speech rights. The Commission’s decision to repeal the offending rule and issue a license mooted such claims. All that remained of the lawsuit at that point were Flying Dog’s claims for monetary damages. Further, those claims for damages weren’t against the Commission. Flying Dog sought to hold each of the five members of the commission personally liable for their actions.
The story howled to life this week when the United States District Court issued a ruling dismissing the case, finding the individual members of the Commission are entitled to absolute, quasi-judicial immunity. To effectively and impartially act in their regulatory role, the Court found the Commissioners must be able to make decisions free of the constant threat of litigation against them in their individual capacities. Without such immunity, the individual Commissioners “would constantly fear being subject to personal liability for what amounts to performing a judicial function—interpreting and applying liquor laws and regulations to the facts of a particular case.” Thus, on the basis of quasi-judicial immunity, Flying Dog can’t sue the members in their individual capacity for compensation.
This makes sense, but Flying Dog isn’t done. The company’s lawyer announced yesterday that Flying Dog plans to appeal the decision, again pointing out that the Commission violated the brewery’s free speech rights.
That dog’s been kicked to the curb. True, there’s no court order definitively stating the Commission violated Flying Dog’s free speech rights. But they aren’t going to get one either. The Commission’s earlier reversal and repeal of the rule were as much an admission of liability as they’re going to get. All that remains is a fight over individual liability for paying up.
Is that cool? Right on the label Flying Dog admits the words Raging Bitch are inflammatory. During the legal proceedings, Flying Dog acknowledge it liked the name of the beer because “it was kind of at the edge of the box.” Flying Dog’s entire schtick is to create unique labels with Ralph Steadman artwork in tribute to Hunter S. Thompson and his “gonzo” approach to life. They like to push the limits and they do it well. I’ve enjoyed quite a few of Flying Dog’s brews and admittedly did a double take when I first spotted a six-pack of Raging Bitch. Which is exactly what Flying Dog wanted.
I can appreciate wanting to establish the fact that a governmental regulation violates constitutional protections. Flying Dog won that battle, even if it doesn’t officially show up in a court order. I can appreciate wanting to recover costs and attorney fees. But when you enjoy pushing the limits, you can’t be too surprised when someone pushes back. At some point isn’t it best to just take your win and head home?
Check out the Associated Press story on the Court’s decision dismissing the lawsuit. It censors the word “bitch.”
* While things were pending, the United States Supreme Court issued a ruling in a case which had a significant bearing on the legal issues in Flying Dog’s litigation.