8th Circuit Upholds Striking Of Missouri Tied House Law and Advertising Regulation as Violation of First Amendment

In a relatively short decision, the 8th Circuit upheld the district court decision striking a Missouri statute and two regulations related to advertising the prices of alcohol.

The fourteen page opinion was written by Circuit Judge Jane Kelly.  She agreed with the district court that the state of Missouri had not proven its case for restricting “speech”.  She noted that the law does not on its face restrict speech but its “practical operation restrict speech based on content and speaker identify.”   She then applied the four part test Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557,563 (1980) and determined that the state failed to carry its “substantial” burden to justify these laws.

She further noted that although most states and the federal government have these laws, Missouri failed to show how their law prevents undue influence. (Missouri does not have legislative history for its laws).   She also used the exceptions Missouri has created (glassware, coasters, etc) against the state as undermining their stated purposes in preventing influence.

Circuit Judge David Stras filed a short concurring opinion arguing for a stricter standard of review than the Central Hudson test for this law.

(Previous Post) 8th Circuit to Hold Oral Arguments on First Amendment Challenges to Missouri Tied House Law and Advertising Regulations On September 26

The 8th Circuit is scheduled to hear oral arguments on the state’s appeal of the district court decision in the Missouri Broadcaster Association case on September 26 in St. Louis.   We will try to post a recap after oral argument  or a link to the transcript.

(previous post) Waiting for Oral Argument at 8th Circuit in Missouri Broadcasters Association

No oral argument date has been set for the Missouri Broadcasters First Amendment Case against Missouri tied house laws and advertising regulations.   In the meantime the plaintiff’s have filed two separate briefs trying to strike the good brief of the Missouri Solicitor General’s office claiming they are trying to bring facts outside the record into the matter.

Oral argument may not happen until September or October in this case depending on the schedules of the court and the parties.

The Plaintiffs have filed their brief with the 8th Circuit urging affirmance and seeking to strike arguments made by the state of Missouri.

(previous post) Briefs Filed With 8th Circuit Urge Support of Missouri Tied House Law and Advertising Regulations

The State of Missouri has filed its brief and addendum appealing the district court decision to strike down one Missouri tied house law and two alcohol advertising regulations.  In a very strong 72 page brief the state outlined the many errors of the district court opinion.  The district court’s erroneous reliance on an overturned 9th Circuit opinion was one of many arguments highlighted by the state.  The brief gives a comprehensive overview of the history of Missouri tied house laws and the proper First Amendment standard.  The brief notes: “Because it regulates conduct, not speech, the tied-house law does not even implicate the First Amendment.”  The state urges reversal of the district court on both the stricken law and the two regulations.

National Beer Wholesalers Association filed an amicus brief along with the Wine and Spirits Wholesalers of America, the Missouri Beer Wholesalers Association, the Missouri Craft Brewers Guild and American Beverage Licensees.  This brief represents organizations spanning all three tiers of the three-tier system.   This brief further highlighted the history of these laws and how the trial court reached the wrong conclusion by  following the logic of the overturned 9th Circuit ruling.  The Plaintiffs convinced the district court that exceptions to the tied house laws doomed the law but the 9th Circuit actually held the opposite.  The 8th Circuit already previously held as much in the Southern Wine case related to three tier exceptions.  Moreover, the “exceptions” that the Plaintiffs claimed to be fatal only tally around 1% of the alcohol sold in the state.  As I like to say, just because Swiss cheese has holes in it does not make it cheese!

The Plaintiffs will now have 30 days to file their response.

(previous post) Missouri Appeals First Amendment Case to the 8th Circuit

The state of Missouri has appealed the district court decision to the 8th Circuit.  Their first brief will be due September 18th unless an extension is granted.

(previous post) Missouri Alcohol Advertising Laws Struck Down After Trial

While on vacation I neglected to post this update on the Missouri Broadcaster lawsuit against certain advertising laws in Missouri.  After the 8th Circuit reversed and remanded for fact-finding, a Missouri district judge held a bench trial to examine these laws.

On June 29th, the court ruled against the state of Missouri and struck down certain advertising regulations relating to advertising sales below cost and mandated disclosure of the number of retailers. The opinion further stayed enforcement of the accompanying tied house law related to these rules.  His opinion can be found here.

The Court believed these laws impermissibly restricted commercial speech and the state did not prove in trial compelling reasons to save these laws.  There remain questions about how he reached this decision including citing to a 9th Circuit case that was later overruled.   It is unknown if there will be an appeal.

(Previous Post) 8th Circuit Reverses Win for Missouri on Alcohol Advertising

The 8th Circuit has ruled that a district court was wrong to grant a 12(b)(6) motion to dismiss brought by Missouri against a complaint by the Missouri Broadcasters Association. The District Court opinion is here.

The Missouri Broadcasters brought a challenge to three provisions of the Missouri alcohol code. The challenged provisions were laws that prohibit advertising by alcohol retailers of discounted prices outside their establishment, advertising of alcohol below costs, and a requirement that advertisements list all retailers rather than just one.

The 8th Circuit believed the district court erred in dismissing the case for failing to state a claim as it noted; “We hold the plaintiffs pled more than sufficient facts to state a claim plausible on its face.”

Moreover the court brushed aside the “commonsense link” arguments by the state and suggested the proffered defenses by the state to these laws failed to survive First Amendment scrutiny.

As the motion to dismiss is now overturned, the matter will return to district court and possibly be muted by legislative action now that the Missouri Legislature is in session.

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