Old Oak Brewery, Inc., makes and sells alcoholic beverages with labels that display a drawing of a squirrel making the gesture generally known as "giving the finger." Old Oak applies to the Ohio State Liquor Authority (OSLA) for brand-label approval to sell the beer in Ohio. Without considering alternatives, OSLA denies approval because "the label could appear in grocery stores, with obvious exposure on the shelf to children of tender age."

Question

Why would a court hold that the denial of Old Oak's application violates the First Amendment?

Answer 1

A court would most likely reason that OSLA's ban on the use of the labels lacks a "reasonable fit" with the state's interest in shielding minors from vulgarity, and OSLA did not adequately consider alternatives to the ban. The interest of OSLA, as a state agency, in protecting children from vulgar advertising is "substantial." The question is whether banning Old Oak's labels "directly advances" that interest. A court might reason that barring the label at issue in this problem cannot realistically be expected to reduce children's exposure to such displays to any significant degree, considering such displays' wide currency in society. Also, as to whether the ban on the labels is more extensive than necessary to serve such an interest, a court would likely point out that there may be many, less intrusive alternatives. For example, OSLA might restrict the locations where Old Oak's products may be displayed in stores.