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Prohibition, was repealed in 1933.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
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
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
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.