In Missouri, like in most states, bars and restaurants can offer happy hour specials. But good luck finding out what those specials are.
It is legal to post signs about happy hour, so that passersby can know they are happening. But the state currently bans any kind of advertisements about discounted drink price outside anywhere licensed to serve alcohol. Bar and restaurant owners are even forbidden from displaying signs within their own establishments about drink specials on their own menus.
In other words, a Missouri bar could put up a sign that says happy hour exists. But if that sign mentioned half-price beers or discounted rail drinks, the government could fine and shut them down.
Why should state officials decide how bar people advertise their business? Although it is usually a good idea to talk to the bartender about the specials, alcoholic or otherwise, it should not be a legal requirement under penalty of economic ruin for hanging a sign.
Thanks to a recent lawsuit filed by a broadcasting industry group, radio station operator, winery and retailer, this bizarre state of affairs may soon come to an end. Last week, the Eighth U.S. Circuit Court of Appeals allowed their case to go forward, ruling that it “plausibly demonstrates the challenged provisions do not directly advance the government’s asserted substantial interest, are more extensive than necessary, and unconstitutionally compel speech and association.” The ruling reverses a lower court’s decision to dismiss the lawsuit.
The plaintiffs argue the regulations, which prohibit certain content but not others, are facially unconstitutional under the First Amendment. Commercial speech in the past has received less protection than other kinds of protected speech, but the Supreme Court hinted in IMS Health Inc. v. Sorrell that those days may be coming to an end. And it’s about time: Restricting people’s speech is an unacceptable infringement on people’s civil rights, whether or not they are promoting their business, and bans on happy hour advertisements only serve to keep customers in the dark.
The case centers on a convoluted mix of statute and regulations that aim to tightly control what liquor companies, stores and bars in Missouri can say about any alcoholic products. Perhaps most damningly, the Eighth Circuit found “multiple inconsistencies within the regulations poke obvious holes in any potential advancement of the [state’s professed] interest in promoting responsible drinking, to the point the regulations do not advance the interest at all.”
There is no good reason for the government to micromanage the details of businesses’ advertising strategy. Missouri should live up to its nickname and allow its retailers to show residents what they have to offer.