Porn and protest is OK, but when it comes to free speech, the three-tier system has its own rules
Perhaps the best thing about this country is the First Amendment to the Constitution – that the government can’t restrict free speech unless there are special circumstances, like national security, public safety, and pornography. Even then, the bar is very high.
Except, of course, when it comes to the three-tier system. I’ve tried desperately over the years to make my peace with the way alcohol sales are regulated in the United States, but a recent federal appeals court decision in California made me realize I may never be able to do so. It is regulatory foolishness run amuck.
The case, involving a California law that forbids payments from alcohol manufacturers to retailers as part of the state’s version of three-tier, is incredibly dense unless you practice First Amendment law. But the outline is simple enough: An advertising network wanted to put digital ads in liquor stores. It would sell the ad space to booze companies, and then split the proceeds with the retailers.
This is common in grocery stores, where you’ll see digital displays touting soup or cereal or whatever. But to sell alcohol? Harrumph, said the California liquor cops. That’s because state law prohibits alcohol producers, importers, and wholesalers from “paying money” or providing “anything of value for the privilege of placing or painting a sign or advertisement…on or in any” liquor retailer.
California needs to keep the digital ads out of liquor stores to “advance a legitimate state interest” – in this case, protecting us from beer, wine, and spirits companies paying retailers to carry their products. In some warped way, the state sees the digital ads as bribes to retailers, where your local liquor store won’t carry Miller Lite unless its owner, the mega-billion dollar beer behemoth Molson Coors, buys an ad.
How silly does that make three-tier sound?
Or, as the blog’s official three-tier legal expert put it:
“This decision means all the three-tier system criers will be emboldened and use this as an excuse to make even more intrusive inroads on commercial and personal liberties. The argument is that the courts clearly favor the three-tier system and uphold anything done in its name, so anything a regulator cares to pull off can be justified by that all encompassing claim of ‘three-tier system.’ It is irritating that such claims and reasoning are so patently bogus and that matter so little. As in many things, the broad justification of ‘three-tier system!’ is an excuse not to think.”
So the New York Times can publish the Pentagon Papers, because that’s protected by the First Amendment. And you can buy and read pornography without fear of being arrested, because that’s protected by the First Amendment. And you can march in protest against the government, because that’s protected by the First Amendment.
But you can’t sell an ad to a wine company to put in a liquor store, because three-tier says no — and without three-tier the republic would collapse.