Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market at the expense of independent craft beer and consumer choice, evolving commercial speech doctrine threatens to invalidate them due to a trend towards increased protections for commercial speech. Without these regulations, and many others like them, nothing would restrain global corporate brands from engaging in illegal pay-to-play conduct to regain lost market share and force independent craft beer from the shelves and tap handles.
Editor's Note:Thank you to Paige Davidson and Jessica Gandara for powerful research assistance and insights.
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In Greece, New York, as in many other places around the country, the town board begins its monthly meetings with a prayer. While the audience members—including town residents and employees with matters pending before the board—bow their heads or join in, a chosen “chaplain of the month” delivers an invocation before the governing body’s business begins. The Town has had no formal policy for selecting this chaplain, but by regular practice, a municipal employee solicits volunteers from among those religious groups listed in the community guide and local newspaper. Until 2008, the list included only Christian organizations. And, although no town official reviews the content of the prayers before they are delivered, a “substantial majority” of those given have “contained uniquely Christian language.” Two town residents objected to the practice in 2007, and they filed suit when their complaints went largely unheeded. Eventually, the Second Circuit concluded that the prayers “impermissibly affiliated the town with a single creed, Christianity,” and in the spring of 2012 the Supreme Court granted certiorari. Then, in a development few saw coming, the United States filed an amicus brief in the summer of 2013—in support of the Town.