Missouri Broadcasters Association; Meyer Farms, Inc.; Uncle D's Sports Bar & Grill, LLC; Zimmer Radio of Mid-MO, Inc. Plaintiffs - Appellants
Lafayette E. Lacy, State Supervisor of Liquor Control, in his official capacity; Chris Koster, Attorney General of the State of Missouri, in his official capacity Defendants-Appellees
Submitted: November 17, 2016
from United States District Court for the Western District of
Missouri - Jefferson City
RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.
State of Missouri enacted a statute and two regulations
detailing the information alcohol manufacturers, wholesalers,
distributers, and retailers could include in their
advertisements. See Mo. Rev. Stat. §
311.070.4(10); Mo. Code Regs. Ann. tit. 11, §
70-2.240(5)(G), (I). Plaintiffs filed suit alleging the
statute and regulations violated their freedom of speech
under the First Amendment of the United States Constitution.
Having appellate jurisdiction under 28 U.S.C. § 1291, we
reverse the district court's grant of defendants'
motion to dismiss. Plaintiffs' amended complaint
plausibly stated a claim upon which relief could be granted.
enacted two regulations prohibiting alcohol manufacturers,
wholesalers, distributers, and retailers from advertising
certain information under specific circumstances. Section
70-2.240(5)(G) (Discount Advertising Prohibition Regulation)
prohibits alcohol retailers from advertising discounted
prices outside their establishment. According to plaintiffs, the
Discount Advertising Prohibition Regulation prohibits
retailers from advertising information such as "a
two-for-one special on beer at the local grocery store, a
going-out-of-business sale at a specialty wine shop, or a
coupon for one free drink with the purchase of an entree at a
neighborhood bar and grill." According to the
interpretation put forth by defendants, the Discount
Advertising Prohibition Regulation does permit advertising
sales using generic descriptions (e.g., "Happy
Hour" and "Ladies Night") and advertising all
sales, promotions, and discounts within the retail
establishment itself. In addition, § 70-2.240(5)(I)
(Below Cost Advertising Prohibition Regulation) prohibits
alcohol retailers from advertising prices below the
retailers' actual cost.
also enacted a statute (Single Retailer Advertising
Prohibition Statute) specifying how distillers and
wholesalers may advertise retailers selling their products.
See Mo. Rev. Stat. §
311.070.4(10). The Single Retailer Advertising
Prohibition Statute requires producers and wholesalers, if
they choose to list any retailer in an advertisement, to
exclude the retail price of the product from the
advertisements, list multiple retail businesses not
affiliated with one another, and make the listing
inconspicuous. See id.
Plaintiffs-a non-profit corporation promoting the interests
and welfare of the broadcasting industry, a corporation
operating radio stations, a winery, and a commercial food and
drink establishment licensed to sell alcohol-filed suit
against Missouri's state supervisor of liquor control and
state attorney general. According to the amended complaint,
the three challenged provisions are facially unconstitutional
under the First Amendment. Plaintiffs asserted the challenged
provisions prohibit truthful, non-misleading commercial
speech and restrict the free flow of truthful information to
potential customers. Plaintiffs also claimed Missouri
inconsistently enforces the provisions, allowing some
prohibited advertisements to go unpunished, and the Single
Retailer Advertising Prohibition Statute unconstitutionally
compels speech. Under plaintiffs' theory,
"[d]efendants cannot show that the [challenged
provisions] directly advance a substantial governmental
interest, nor that they regulate no more extensively than
necessary to serve that substantial interest."
moved to dismiss the amended complaint, which the district
court initially denied. Plaintiffs then moved for summary
judgment. The district court denied plaintiffs' motion
for summary judgment and, in the same order denying summary
judgment, stated: "[G]iven that defendants raised these
same issues previously in their motion to dismiss, the Court
finds that reconsideration of the Court's previous order
denying the motion to dismiss is warranted, and the Court sua
sponte grants defendants' motion to dismiss." The
district court did not provide any further discussion of how
the amended complaint failed to state a claim. Plaintiffs
appeal the district court's dismissal, and we
review a district court's grant of a Rule 12(b)(6) motion
to dismiss de novo. See Sabri v. Whittier All., 833
F.3d 995, 998 (8th Cir. 2016). "[W]e accept as true all
factual allegations in the complaint and draw all reasonable
inferences in favor of the nonmoving party."
McDonough v. Ankoa County, 799 F.3d 931, 945 (8th
Cir. 2015). "To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face'" and plead "factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To state a
claim that a statute is facially invalid under the Free
Speech Clause of the First Amendment, plaintiffs must show
"'that no set of circumstances exist under which
[the statute] would be valid, '" United States
v. Stevens, 559 U.S. 460, 472 (2010) (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)), or that
"a 'substantial number' of [the statute's]
applications are unconstitutional, 'judged in relation to
the statute's plainly legitimate sweep, '"
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449 n.6 (2008) (quoting New York v.
Ferber, 458 U.S. 747, 770-71 (1982)).
parties agree the challenged provisions regulate commercial
speech. The First Amendment "accords a lesser protection
to commercial speech than to other constitutionally
guaranteed expression." Cent. Hudson Gas v. Pub.
Serv. Comm'n of N.Y., 447 U.S. 557, 563 (1980). In
Central Hudson, the Supreme Court identified four
considerations to determine the constitutionality of laws
burdening commercial speech: "(1) whether the commercial
speech at issue concerns unlawful activity or is misleading;
(2) whether the governmental interest is substantial; (3)
whether the challenged regulation directly advances the
government's asserted interest; and (4) whether the
regulation is no more extensive than necessary to further the
government's interest." 1-800-411-PAIN Referral
Serv. LLC v. Otto, 744 F.3d 1045, 1055 (8th Cir. 2014).
stage, defendants accept the provisions prohibit truthful and
non-misleading speech and plaintiffs concede the asserted
state interest of promoting responsible drinking is
substantial.See Mo. Rev. Stat. §
311.015. Thus, the only two points at issue are whether
plaintiffs' amended complaint included sufficient factual
matter to state a claim that (1) the provisions do not
directly advance the substantial interests or (2) the
provisions are more extensive than necessary. See
Iqbal, 556 U.S. at ...