NEW YORK (Reuters) - A naughty frog with a raised middle finger may be far from being a prince, but New York State still has to let the amphibian gesticulate on beer bottle labels under free speech rights, a court has ordered.
The prestigious U.S. Second Circuit Court of Appeals, in a ruling dated Thursday, said the New York State Liquor Authority violated the U.S. Constitution by banning Bad Frog Brewery from selling beer with the insulting label.
ÿÿÿ In its ruling, the Second Circuit overturned a lower court's decision to throw out Michigan-based Bad Frog's commercial free speech challenge to the liquor authority's ban.
ÿÿÿ "A picture of a frog with the second of its four unwebbed 'fingers' extended in a manner evocative of a well-known human gesture of insult has presented this Court with significant issues concerning First Amendment protections for commercial speech," the judges said.
ÿÿÿ A three-member panel of the Second Circuit, comprised of New York, Connecticut and Vermont, said the state's prohibition does not materially advance its asserted interest in insulating children from vulgarity or promoting temperance.
ÿÿÿ The Second Circuit said the district court found the frog's gesture "'connotes a patently offensive suggestion,' presumably a suggestion to having intercourse with one's self."
ÿÿÿ The appeals court said hand gestures signifying an insult have been in use throughout the world for many centuries and the extended middle finger, known in the United States as "giving the finger" or "flipping the bird" is said to have been used by Diogenes to insult Demosthenes.
ÿÿÿ Bad Frog did not dispute that the gesture is widely regarded as an offensive insult and versions of the label feature slogans such as "He just don't care," and "An amphibian with an attitude."
ÿÿÿ The labels have been approved for use by the Federal Bureau of Alcohol, Tobacco and Firearms and by at least 15 states. However they were rejected by New Jersey, Ohio and Pennsylvania.
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