The First Amendment and ambiguously anthropomorphic dogs

Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm’n, No. 12-1984 (6th Cir. Mar. 5, 2015).

Mt. Shasta Brewing Company, located in Weed, California, tops its bottles with caps that read, “Try Legal Weed.” Back in 2008, the TTB—the federal regulators of alcohol and tobacco—ordered Mt. Shasta to stop using the bottle caps. After lots of bad press and the threat of litigation, the TTB backed down and approved the cap.

Something similar happened recently to Maryland’s Flying Dog Brewery, which produces a beer called “Raging Bitch.” The beer’s label, according to the Sixth Circuit, “depicts a wild dog presenting human female genitalia as well as possessing semblances of human female breasts.” The dog itself is perhaps more ambiguously anthropomorphic than that (notice, though, what the dog is walking on):

Sixth Circuit appeal Raging Bitch

So, while “Try Legal Weed” is somewhat clever, the label to Raging Bitch is just vulgar. 

One man’s vulgarity, however, is another’s lyric. And so, when the Michigan Liquor Control Commission withheld approval of the label on the ground that its “promiscuous [sic] nature” was “detrimental to the health, safety, or welfare of the general public,” Flying Dog sued, alleging a First Amendment violation. 

After the suit began, the Commission approved the label, so all that remains in the case is Flying Dog’s § 1983 suit for damages. The Sixth Circuit holds that the Commission isn’t a quasi-judicial body that enjoys absolute immunity. It also holds that the district court prematurely granted summary judgment to the Commission on the issue of qualified immunity. It remands for the district court to consider whether the Commission violated Flying Dog’s clearly established rights under the First Amendment. Judge Moore would hold that the Commission has violated those rights, and she dissents in part.