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Beer Nuts

How the First Amendment helped the Utah bar scene gets its groove back.

By Brian M. Barnard
Posted // July 1,2009 - In mid-2001, the “r” got put back into “Beer” and Beer Nuts came out of the cooler in Utah. Advertising of beer, wine and liquor had been strangely restricted until a federal appeals court ruled that the First Amendment was alive in Utah.

A little history: The “Noble Experiment,” national Prohibition, was repealed in 1933. The Utah Legislature’s vote was the final one needed to amend the U.S. Constitution and pass the 21st Amendment. That amendment gave individual states the power to regulate alcohol manufacture and sales. It also launched the era of Utah’s strange modern liquor laws and the state´s even odder repressive regulation of alcohol advertising.

All states assumed that with the power to regulate liquor production and sales came unfettered power to regulate or ban alcohol advertising. It took 68 years for them to learn that the 21st Amendment did not trump the First Amendment.

The Utah Alcoholic Beverage Control Commission took on the contradictory goals to make alcohol available to those whose wanted to consume it but, at the same time, to “protect nondrinkers from liquor advertising.”

The state was eager to collect taxes from alcohol sales but wanted to hide the fact that wine could be consumed at fine restaurants and that beer was sold in taverns. Not surprisingly, this being Utah, the goal of repression prevailed.

In the early 1990s, the state liquor commission took over regulation of beer and imposed onerous restrictions on beer advertising. Utah law virtually banned all local advertising regarding alcohol. The Salt Lake Tribune could not run an ad for Bacardi Rum, but USA Today could. A waiter could not offer you a wine list—he had to play charades, asking, “Would you like something to drink other than water?”

The word “ghosts” on the windows at the nowshuttered Port O’ Call was a legal way of referring to the spirits that could be found inside—not those of the ectoplasmic type.

Taverns could not have a neon sign in the window visible from the outside that read “Budweiser.” Clever tavern owners put up signs for “Coors’ Cutter,” a nonalcoholic brew; people “got the message.” One convenience store legally advertised “Ice Cold Beer” in big letters, and in small letters, “nuts”— sure enough, in the cooler inside were some honeyroasted peanuts. The old Junior’s Tavern altered its window signs to promote music and insects with “Jazz Blues & Bee__,” to stay legal.

In 1995, the U.S. Supreme Court invalidated a Rhode Island law that merely prohibited the advertising of liquor prices, holding that providing such truthful information regarding a legal product was protected under the First Amendment.

That prompted, in July 1996, the trade group Utah Licensed Beverage Association, the Catalyst magazine and consumer Wayne Bensonto to file a federal civilrights lawsuit. They represented the three parts of the advertising equation: the advertiser, the medium and the reader. The suit claimed the First Amendment right to offer, convey and receive legal information was abridged by Utah’s unreasonable restrictions and discriminatory ban.

Because the lawsuit involved a First Amendment issue, an immediate temporary restraining order was requested. First Amendment claims are usually granted priorities in the courts and are considered “emergencies.” The trial court judge glacialy pondered, weighed and considered, and inexplicably did not rule on that request for three-and-a-half years. In February 2000, he denied the temporary restraining order. An immediate appeal was taken, and expedited consideration was granted.

On July 24, 2001, in a strongly worded decision, the federal Court of Appeals in Denver declared Utah’s ban on alcohol advertising to be “irrational” and unconstitutional. On that fine Pioneer Day in 2001, the First Amendment was reaffirmed in Utah, Beer Nuts came out of the cooler, and waiters quit playing charades. Utah has not been the same since.

Salt Lake City civil-rights attorney Brian M. Barnard has actively battled free expression restrictions since coming to the Beehive State almost 40 years ago. After removing the state’s liquor ad ban, he continues tilting after other irrational windmills in Utah.
 
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