Beer Thumbs Up

A federal appeals court in St. Louis has given Missouri broadcasters a reason to pop a few corks. The court upheld a lower court ruling that struck down three state laws that put restrictions on alcohol advertising. The three-judge panel in the Eighth Circuit Court of Appeals was unanimous in its decision, which said the state limits violated First Amendment free speech rights. The appeals court said the Missouri laws, which severely restrict alcohol distributors and producers from most retail advertising, aren’t needed to ensure an “orderly” marketplace.

“Missouri fails to show how the statute, as applied, alleviates to a significant degree the harm of undue influence,” wrote U.S. Circuit Judge Jane Kelly in the 15-page decision. She said the state attempted to use “consensus and history” to defend its statutes. But she said that effort was “misplaced” because it relied too heavily on what other states have done and wasn’t focused on Missouri’s own history or the particular regulations at the center of the fight. “The fact that other states and the federal government have tied-house laws does not make Missouri’s version constitutional,” wrote Kelly.

The court noted that under the law a bar could run an ad which says “drink Coors Light, now available at Joe’s Bar” but a producer or distributor could not.

The Missouri Broadcasters Association (MBA) has been leading the charge to have the state’s regulations struck down for nearly a decade. Missouri has had some of the strictest alcohol advertising rules in the country, employing a three-tiered system of alcohol producers, distributors and retailers designed to keep producers and distributors from having “undue influence” over places that sell or serve their products. But broadcasters have said the rules unfairly disadvantaged local radio and television stations and newspapers since internet ads weren’t covered by the laws.

MBA has been focused on the issue since 2011 and it first took the state to court in 2013. During each phase of the case it’s scored a victory, only to be taken back into court when the state appealed the decision. The latest Appeals Court ruling was in response to the state’s appeal of a decision handed down in July 2018. In that ruling, U.S. District Court Judge Douglas Harpool sided with broadcasters, determining the state’s strict limits violated commercial free speech rights. Harpool also ordered the state to stop enforcing the ad restrictions and the appeals court ruling means those advertisements will continue to be allowed.

“We have always believed that it was wrong for Missouri law to stand in the way of truthful media advertising,” said MBA president Mark Gordon 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.”

While MBA has bankrolled the fight, it was joined in the appeal by Zimmer Radio Group, the Springfield, MO wine producer Meyer Farms; and Uncle D’s Sports Bar & Grill in Saint Joseph, MO. Broadcasters also picked up the support of several outside groups: Washington Legal Foundation, the Show-Me Institute, American Civil Liberties Union of Missouri, the Freedom Center of Missouri and the Cato Institute all filed friend-of-the-court briefs advocating for the law to be struck down.

The Missouri Attorney General’s office has not yet said whether it will ask the full Eighth Circuit to review the decision. Illustrating how long the courtroom fight has run, current Missouri Attorney General Eric Schmitt is the third A.G. to handle the case. His predecessor Josh Hawley is now serving as a U.S. Senator. Both are Republicans but Hawley’s predecessor, Democrat Chris Koster, also fought to keep the state’s limits on alcohol ads in place.