Cheers to Judicial Activism
At least in this specific case.
The Texas Alcoholic Beverage Commission has a lot of stupid regulations.
In fact, I'd go as far as saying that every state alcohol board is filled with graft, stupidity, nanny-state-ism, and crony capitalism. It's just a patronage swamp for politicians -- every donor's idiot brother gets a job there -- and a shakedown office for beer and liquor distributors who want to legally maintain their monopolies.
The Texas commission wasn't worse, necessarily, than any other, but thanks to a sharp-tongue judge, it just got better. From Austin360.com:
In a partial victory for beer lovers and Texas breweries, U.S. District Judge Sam Sparks Monday ruled in favor of Jester King Brewery, Authentic Beverage Co. and Zax Restaurant and Bar in a First Amendment claim against the Texas Alcoholic Beverage Commission.
Sparks ruled sections of the Texas Alcoholic Beverage Code and the Texas Administrative Code are unconstitutional and a violation of the First Amendment. Among other things, the code prohibits breweries from, say, letting customers know where they can find their products. And, just as baffling and the larger point of Sparks’ edict, it requires beer at four percent alcohol by volume to be called just that, while higher ABV brews had to be labeled “malt liquor” or “ale,” which causes many headaches, labeling among them, for brewers of Texas big beer. Beer and ale may heretofore be labeled “beer” or “ale” regardless of alcohol content, and just like that the world became a slightly better place.
Judge Sparks is a funny guy:
"In a remarkable (though logically dubious) demonstration of circular reasoning” Judge Sparks writes in his ruling, “TABC attempts to defend the constitutional legitimacy of the Code through an appeal to the statutory authority of the Code itself.” Referring to the required use of the terms “beer”, “ale”, and “malt liquor”, he writes “TABC’s argument, combined with artful legislative drafting, could be used to justify any restrictions on commercial speech. For instance, Texas would likely face no (legal) obstacle if it wished to pass a law defining the word ‘milk’ to mean ‘a nocturnal flying mammal that eats insects and employs echolocation.’ Under TABC’s logic, Texas would then be authorized to prohibit use of the word ‘milk’ by producers of a certain liquid dairy product, but also to require Austin promoters to advertise the famous annual ‘Milk Festival’ on the Congress Avenue Bridge.’”
Score one for judicial activism.
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Comments :
Aug '11
Re: Cheers to Judicial Activism
I hope this starts a trend. Liquor laws are mindbending everywhere. Protection of the public is really just a distribution and retail protection raquet - silly, arcane and corrupt. Of course, the fed, states and municipalities extract their pounds of flesh in the bargain.
Deregulate alcohol!
Cheers.
Jun '10
Re: Cheers to Judicial Activism
I'm all for free commercial speech, esp. free beer speech, but this may run afoul of the Prohibition repeal amendment which left regulation of alcohol to the several states. At least there is a tension here between the first and twenty-first amendments.
Nov '11
Re: Cheers to Judicial Activism
But its for your own good, don't ya know! And for the good of society!
Re: Cheers to Judicial Activism
I'll drink to that!
Mar '11
Re: Cheers to Judicial Activism
The judge is correct in his analogy because the terms "lager" or "ale" have nothing to do with ABV. It refers to whether the beer was fermented with a top fermenting (ale) or a bottom fermenting (lager) yeast.
Apr '11
Re: Cheers to Judicial Activism
Yeah, that was one of my thoughts, too. It is difficult to know the legitimacy of the case without a lot more details. Even when the results are very good (as they most certainly seem to be in this instance), if the cost is harm to Constitutional legitimacy, cases like this should be decried.
Re: Cheers to Judicial Activism
Just for knowing this I want to drink with you.
Mar '11
Re: Cheers to Judicial Activism
What we have here in SC is really messed up. With the remnants of the blue laws, alcohol sales are restricted on Sunday. However, local municipalities have been able for a number of years to choose to license for Sunday sales. In my county, you can buy alcohol in Greenville city proper, but not the county. Except that I noticed the other day that Trader Joe's does sell wine on Sunday and I am pretty certain they are not in the city. Not sure what's going on there. What you end up with is a bunch of drunks on sunday afternoon having to drive 10 miles on their beer run rather than 1.5. The worst of all situations. Perfect government logic. The Bil-lo on the north end of the city, closest to the city line is known as beer-lo due to sunday beer sales. It gives them an unfair competitive advantage.
May '10
Re: Cheers to Judicial Activism
It's not only the USA. In Thailand, where I am now, you can't buy alcohol between 2 and 5 in the afternoon. Huh?
Sep '11
Re: Cheers to Judicial Activism
As the wife of a homebrewer, beer tourist, and Texas resident, I find this awesome. TABC is one of the most overreaching/anti-freemarket agencies (besides TCEQ--or T-suc as it's commonly known) in an otherwise free state. They are the bane of small businesses in all aspects of alcohol sales.
Proost Judge Sparks!
Jun '10
Re: Cheers to Judicial Activism
So, you've been to Santa Fe, eh?
Apr '11
Re: Cheers to Judicial Activism
But is this judicial activism? When states stray from the Bill of Rights isn't that a legitimate action? Isn't judicial activism the manufacture of unconstitutional government authority rather than the protection of rights?
Re: Cheers to Judicial Activism
Exactly! I've made this point in other posts, but I'll say it again: not every decision that strikes down a law is "activist." Activism is the failure to obey the written law; but when one written law (the Constitution) conflicts with another written law (state reg), the Court must enforce the Constitution.
So, don't drink to judicial activism -- drink to the Constitution!
Aug '10
Re: Cheers to Judicial Activism
Adam Freedman
Exactly! I've made this point in other posts, but I'll say it again: not every decision that strikes down a law is "activist." Activism is the failure to obey the written law; but when one written law (the Constitution) conflicts with another written law (state reg), the Court must enforce the Constitution.
So, don't drink to judicial activism -- drink to the Constitution!
It's after noon now where I am. So bottoms up!