Maine Civil Liberties Union Challenges State Censorship of Artistic Beer Labels

Affiliate: ACLU of Maine
November 30, 2006 12:00 am

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Labels Featuring Santa Clause and Famed French Painting Deemed “Improper”

PORTLAND, ME – The Maine Civil Liberties Union today filed legal papers challenging the state’s refusal to issue permits to a beer distributor because their labels were deemed “undignified or improper.” One beer features Santa Claus on its label, while another features a well-known French painting that hangs in the Louvre.

“There is no good reason for the state to censor art, even art found on a beer label,” said Zachary Heiden, a staff attorney with the MCLU. “Artistic expression is entitled to the highest level of protection under the First Amendment.”

The three labels at issue are each entitled to First Amendment protection, the ACLU said. “Santa’s Butt Winter Porter” is illustrated with Santa Claus sitting on a large barrel (also called a “butt”), and humor is a protected form of expression. “Les Sans Culottes” is illustrated with a detail from Eugene Delacroix’s painting “Liberty Leading the People,” which hangs in the Louvre and was used on France’s 100 Franc note. “Rose de Gambrinus” is illustrated with a watercolor painting that was specifically commissioned by the Belgian brewery that produces it. The labels for “Les Sans Culottes” and “Rose de Gambrinus” feature paintings of bare-breasted women, but the paintings are artistic renderings no more salacious than what is commonly seen in art museums, the ACLU said in legal papers.

The MCLU represents Shelton Brothers, a specialty beer distributor that was refused permission to sell three beers.

“These illustrations have been used on beer sold across the country,” said Daniel Shelton, the elder Shelton brother who works with small craft-breweries around the world. “I can’t imagine why Maine would object to Santa Claus.”

Maine law requires beer and liquor distributors to obtain a Certificate of Approval and to register the labels with the Maine Bureau of Liquor Enforcement. The Bureau ensures that labels are factually accurate: displaying the correct ingredients and the proper volume, for example. The Bureau also polices the illustrations used on the labels. That raises First Amendment concerns because those illustrations have expressive value distinct from the beer they advertise.

Under the 21st Amendment to the U.S. Constitution, which repealed Prohibition, states have the power to regulate the sale of alcohol within their borders. But, the U.S. Supreme Court has made it clear that this power does not trump the First Amendment’s right to freedom of expression. In the case of Bad Frog Brewery v. New York State Liquor Authority, the U.S. Court of Appeals for the Second Circuit held that beer labels can be protected speech, especially when they have artistic content. The New York Liquor Authority recently tried to ban the label for “Santa’s Butt Winter Porter” but backed down after a lawsuit was filed.

“Freedom of expression is not just an abstract principle — it protects the books we read, the art we see, and the beer we drink,” said Shenna Bellows, MCLU Executive Director. “The MCLU hopes that the case can be resolved quickly, and that ‘Santa’s Butt Winter Porter’ will be available in Maine by Christmas.”

Mr. Shelton is represented by MCLU Legal Panel Chair Richard O’Meara, of Murray Plumb and Murray.

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