By Michael Armstrong

Homer Independent Press

Two Homer tap rooms won a major First Amendment case last Wednesday when a judge ruled the Alcoholic Beverage Control Board and the director of the Alcohol and Marijuana Control Board violated their right to freedom of expression by prohibiting breweries, meaderies and wineries from holding live entertainment.

Sherry Stead, co-owner of Grace Ridge Brewing, and Jason Davis, owner of Sweetgale Meadworks & Cider House, celebrated their victory last Thursday at Grace Ridge with cake and a live music performance by Homer singer English John.

Anchorage brewery Zip Kombucha joined Grace Ridge and Sweetgale in challenging provisions of Senate Bill 9 that only allowed four permitted live performances a year and only for certain kinds of breweries. The law had been passed as a compromise in what the judge called a “turf war” between the breweries and the state’s established bars and other liquor establishments.

“It’s very exciting, and because it was struck down on constitutional grounds,” Davis said in a phone interview on Tuesday. “We’re told by our legal team that we can schedule musical events anytime we want now, so I’m already working on one for February.”

Stead said several years ago she had asked the Alcoholic Beverage Control Board permission to hold a poetry reading, and they said no. Under the court ruling, they don’t need permission.

“We’re very happy, very pleased,” Stead said in a phone interview on Wednesday. She planned to meet with Kathleen Gustafson to have a poetry slam at Grace Ridge. “… So it just opens up a lot of options for us, for us and our customers. It’s just, I think it’ll just make it a little more fun, and they just don’t have to worry if someone gets out a guitar and starts playing. Go for it, you know?”

SB 9 made sweeping changes to Title 4 of Alaska Statutes and was passed by the Alaska Senate in 2021 and by the Alaska House in May 2022, according to the Alaska Beacon.

Anchorage Judge Adolf V. Zeman delivered the decision Jan. 14 in a 25-page written decision. The plaintiffs filed their suit in February 2024 after SB 9 went into law that January. The bill prohibited manufacturers of beer, mead or wine from having onsite entertainment such as “live music or performances, disc jockeys, karaoke, televisions, pool tables, dart games, or organized games or tournaments.” It did allow activities or presentations to promote or educate patrons about their products. The plaintiffs claimed the restrictions on live entertainment violated their First Amendment rights under the U.S. Constitution and the Alaska Constitution.

In his decision, Zeman ruled that the First Amendment applies not just to the written or spoken word, but “to other mediums of expression including music, video, and live performances.” Zeman let stand the restrictions on pool tables, dart games, organized games or tournaments.

The defendants claimed that restricting live entertainment served the state interest to “prevent alcoholic beverage manufacturers from encroaching into the market for retail sale for onsite consumption,” “limited the ways in which the manufacturer may compete,” and “achieve political compromise.” The defendants cited legislative history, saying that the speech restrictions were done not just for public safety reasons but as part of a political compromise.

Zeman recognized that the speech restrictions were part of a broad reform of Alaska’s alcohol industry.

“However, political compromise is not recognized as a substantial government interest for the purposes of restricting speech under the First Amendment. Neither is the codification of preference for one industry actor over another,” Zeman wrote.

That was an important point, said Donna Matias, the attorney for the Pacific Legal Foundation who helped represent the plaintiffs.

“If you’re trying to regulate the difference between these venues, you have to do it in a way that’s consistent with the Constitution,” she said in a phone interview on Wednesday.

Stead said that during hearings and testimony on SB 9 she raised the free speech issue. She added that the law favored legislatively one kind of business over another and was slanted against breweries, meaderies and wineries.

Stead had heard about the Pacific Legal Foundation through news stories and approached them about taking on the case. Matias said the foundation represents clients for free and challenges laws not just infringing on civil liberties but also on economic liberty, property and privacy rights.

“The clients in this case, and all of our clients (are) really incredibly brave people who put a lot on the line so that others don’t have to go through the same thing.  …It really makes a difference,” she said.

Matias said she thought the state knew the restrictions on live entertainment violated free speech.

“I think that they either knew that it was unconstitutional or just ignored that question and hoped that no one would challenge it, because we see that all the time,” she said.

She was surprised that Alaska had live entertainment restrictions. She first heard about them at a craft brewers conference before SB 9 passed.

“I thought, ‘There’s no way,’ because I have this idea of Alaska is like, it’s the libertarian frontier,” she said.

Other states don’t have live entertainment restrictions on breweries, wineries and meaderies, Mattias said. For Alaska, when the law changed from allowing no live entertainment to four events a year, some breweries might have seen that as a gift, Matias said.

“And the reality is, they had their rights all along, and it was that someone was negotiating them away. It wasn’t a gift, right? The court gave the gift,” she said.

No other breweries joined Grace Ridge, Sweetgale or Zip Kombucha in challenging the restrictions on live entertainment. Stead said she had been told not to fight it, that the liquor lobby was too powerful.

“That did not deter me at all,” she said.

Mattias said she hasn’t heard back yet from the defendants on whether they want to contest Judge Zeman’s decision.

Stead said the state made an offer that if the plaintiffs didn’t seek legal costs the state would waive its right to challenge the decision. The three plaintiffs rejected that offer, Stead said, and were adamant about their lawyers getting paid.