Vice Squad
Sunday, December 03, 2006
Beer Label Censorship

Today's New York Times brings word that the state of Maine is hoping to keep its alcohol shelves safe from naughty pictures -- such as Eugene Delacroix's "Liberty Leading the People". The state Bureau of Liquor Enforcement decided against the offending beer labels in September; now, their ruling is being challenged by the Maine Civil Liberties Union on free speech grounds.

Vice Squad has long been concerned with the application of standard commercial free speech rules to the vice arena. The rationale for such rules is to empower consumers by ensuring that they have access to information, and to protect the speech rights of sellers, too. But these laudable ends are less obviously served by extending the usual speech protections to vice good labeling and advertising. First, in the case of the traditional vices, we have somewhat less reason than we usually have to assume that the informed choices of consumers serve their own best interests, as they themselves would define them. Second, and more importantly, the government (for better or worse) has the power to ban vice goods, and many such goods are banned. There is no free speech protection in the US for advertising illegal goods. Unfettered advertising for a vice good might lead to less speech and less freedom, not more, as governments ban such goods rather than tolerate the advertising. This is easier to see in the case of those currently illegal goods rather than in the case of alcohol. A state or nation might be interested in legalizing cannabis. If legalization entails full commericalization and advertising, however, governments are less likely to legalize in the first place.

As with free speech, commitments to free trade and free competition (antitrust) similarly do not serve their usual purposes (at least to the same extent) when these commitments are applied to the traditonal vices. Vice should form an exception to these commitments -- and it will. The choice in practice often is whether the exception will be in the form of legal vice but controls on advertising (or trade, or competition), or in the form of a vice prohibition.

Nevertheless, there is a good chance that the Maine Bureau of Liquor Enforcement will have to back away from its label objections -- and really, the objection to Delacroix is a bit over-the-top (topless?), anyway. Bad Frog Beer has paved the way.

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