Last month, a federal court ruled that New Jersey’s prohibition on “BYOB” advertising—that is, advertising by drinking and entertainment establishments allowing patrons to bring their own alcoholic beverages—violated the First Amendment. As a result of the court’s ruling, Garden State restaurants will now be allowed to post advertisements encouraging their patrons to bring their own wine and beer.
New Jersey law allowed patrons to bring wine or beer onto the premises of establishments that are not licensed to serve alcoholic beverages, but prohibited such establishments from advertising that it was permissible to do so. An Atlantic City nightclub, Stiletto, filed suit in federal district court against Atlantic City and the state, seeking to invalidate the state law. Stiletto wished to advertise that patrons could bring their own beverages to the nightclub.
The federal district court ruled that the advertising restriction violated the First Amendment. Citing Reed v. Town of Gilbert, the court first determined that the prohibition was clearly content based and concluded that it did not pass muster under the strict scrutiny analysis reserved for content based speech regulations. In the alternative, the court found that the regulation did not pass muster under the Central Hudson test for the constitutionality of commercial speech regulations. While the court recognized the state’s ability to regulate conduct within establishments where alcoholic beverages are consumed, it found that a prohibition on a particular medium of speech violated the First Amendment.