Eighth Circuit Strikes Down Ban on Ads for Cheap Booze

ST. LOUIS (CN) – The Eighth Circuit ruled Wednesday that a Missouri law barring bars and restaurants from advertising alcohol at discounted rates through specials or coupons violates their right to free speech.

In 2013, the Missouri Broadcasters Association, Zimmer Radio of Mid-Mo Inc., Meyer Farms Inc. and Uncle D’s Sports Bar & Grill sued the state in federal court, claiming the law violated their First Amendment rights.

The law allowed bars and restaurants to generically advertise that it had a happy hour, but banned establishments from going into detail about what types of specials are offered, such as dollar shots or penny pitchers.

“We have always believed that it was wrong for Missouri law to stand in the way of truthful media advertising,” Missouri Broadcasters Association President Mark Gordon said in a statement. “We believe today’s decision makes it crystal clear that Missouri broadcasters can deliver, and Missouri citizens can receive, truthful advertising about alcoholic beverage prices just as they can with other goods and services.”

Missouri, in a hearing before the Eighth Circuit last September, argued that the state had a compelling interest in limiting such advertising because the ads could encourage underage drinking.

The three-judge panel, however, was not swayed and affirmed a lower court ruling against the law in a 15-page opinion issued Wednesday.

“Missouri fails to show how the statute, as applied, alleviates to a significant degree the harm of undue influence,” U.S. Circuit Judge Jane Kelly, an appointee of Barack Obama, wrote for the panel.

She continued, “Missouri alleges that the statute—as shown through ‘consensus and history’—advances its interest because the three-tiered system prevents undue influence of alcohol producers and distributors over retailers. Missouri’s reliance on history is misplaced, because it discusses the history of other states and the purpose behind tied-house laws generally, but fails to include a discussion of Missouri’s own history or of the statute in particular.”

The appeals court also rejected Missouri’s argument that every other state had similar laws so its own law must pass constitutional muster.

“But the fact that other states and the federal government have tied-house laws does not make Missouri’s version constitutional—particularly when only sections of Missouri’s tied-house law, as applied, are at issue in this case,” Kelly wrote. “Consensus and history, at best, speak to an arguable need for a three-tiered system generally; they do not show how the statute, as applied here, directly and materially advances Missouri’s interest of preventing undue influence.”

U.S. Circuit Judges David Stras, appointed by President Donald Trump, and Michael J. Melloy, a George W. Bush appointee, joined Kelly’s opinion.

The panel affirmed the district court’s June 2018 ruling, in which U.S. District Judge Douglas Harpool issued a permanent ban on the state enforcing the law. Harpool, an Obama appointee, found that the state did not provide enough evidence that offering discounts on booze causes people to drink more or encourages minors to drink.

Harpool’s ruling prompted Missouri’s appeal to the St. Louis-based federal appeals court.

A spokesman for the state did not immediately respond Wednesday to a request for comment on the ruling.

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