By Christina Pesavento and C. Jarrett Dieterle
Everyone knows the first rule of happy hour: You have to talk about happy hour.
Unlike the 1990’s movie “Fight Club” — which exhorted participants not to talk about their activities — happy hour has long been synonymous with socializing, networking, and celebrating the end of the long workday.
But in Virginia, talking about happy hour is illegal. Believe it or not, current regulations forbid restaurants from marketing specific drink specials beyond their premises, including on social media. Violations can trigger week-long liquor license suspensions and fines of up to $500.
Fortunately, our system of government provides an important check for laws that restrict speech — the Constitution.
In no uncertain terms, the First Amendment prohibits states from censoring speech when public officials simply think censorship would serve the public’s best interest. By barring restaurant-owners from advertising truthful information about their happy-hour specials, Virginia’s law runs afoul of this bedrock limit on state power.
As the U.S. Supreme Court recognizes, the First Amendment protects the free flow of information — including advertisements — from government censorship.
In the commercial context, the free flow of information allows consumers to make informed choices on how to spend their money. Given that our nation was built in large measure on the twin pillars of free expression and free enterprise, the court’s logic makes sense.
Of course, as is the case with all rights, the First Amendment’s protection of commercial speech is not absolute. States may ban false advertisements and ads for illegal activity — like prostitution or the sale of heroin — without violating the Constitution.
Yet when an advertisement conveys truthful information about legal activity — say, a sign offering dollar beers or using the phrase “Sunday Funday” — the government has to surmount a significant hurdle to restrict its message: It has to show that its restriction directly promotes a substantial government interest and that the restriction is not broader than necessary to achieve this interest.
Supporters of Virginia’s happy hour law deem it necessary to discourage binge drinking and ensure that underage patrons don’t consume alcohol. Yet even if the state has a valid interest in discouraging these activities, the link between the supposed harms and the advertisement of drink specials is tenuous at best.
For one, the fact that establishments offer discounts on drinks during early evening hours is common knowledge among the drinking-age population.
And under current law, restaurants may advertise that these discounts exist. They just can’t state prices, mention markdown amounts, or use any language aside from the phrases “happy hour” and “drink special.”
Far from eliminating the dissemination of price specials, the law has merely led to third-party aggregator sites springing up online with lists of the specific happy-hour deals available in different parts of Virginia.
If customers are already taking advantage of these discounts, and unaffiliated websites are already advertising them, it’s hard to discern any additional harm in allowing businesses to compete freely for customers by advertising their own specials.
Virginia also has other means at its disposal to curb binge-drinking without trampling business-owners’ free-speech rights. State law already bars establishments from serving intoxicated people, meaning that officials may punish restaurants that serve too much to their patrons.
Virginia also has the authority to fund campaigns that educate people on the dangers of binge drinking, as illustrated by the state’s Department of Alcoholic Beverage Control’s “Alcohol Education Basics Guide.” That these options exist suggests the advertising restrictions are too broad to survive review under the First Amendment.
Additionally, Virginia’s advertising restrictions likely have no effect on teenage drinking. State law prohibits those under 21 from buying or drinking alcohol regardless of price. Unless Virginia establishments are routinely serving those underage patrons, any teen seeking to take advantage of “Tequila Tuesday” will be sorely disappointed upon being asked to show ID.
Luckily, the Pacific Legal Foundation — a nonprofit, public interest firm that fights on behalf of individuals’ rights to freely associate and express themselves — has launched a lawsuit against the commonwealth of Virginia challenging this law.
PLF filed suit on behalf of award-winning restaurant-owner Chef Geoff Tracy, arguing that the happy-hour advertising ban unconstitutionally restricts his speech. Tracy’s situation further underscores the absurdity of Virginia’s happy hour advertising ban: He owns several restaurants in the D.C. area and can freely advertise happy-hour specials at his Maryland and Washington locations, even though similar activity at his Virginia restaurant (in Tysons Corner) is illegal.
Tracy’s suit holds the potential to vindicate the rights of restaurant-owners across the state to convey honest information to their customers — and the rights of happy-hour-lovers to receive it. Thanks to his efforts, you may soon be able to start talking about happy hour again in Virginia.