As time allows, on behalf of the Estate of Tasunke Witko,
periodic "Crazy Horse Updates" will be posted on the progress in
both the Tribal Court and Minnesota appeals involving the
unwarranted use of the name on Hornell & Heileman's malt liquor.
We have appreciated all of the responses and notes of encouragement
and support. Those interested in directly participating in these
efforts should contact the Crazy Horse Defense Project, by
telephone at 612/870-9006 and by FAX: 715/425-7000.
Papers served this week upon the Estate of Tasunke Witko, Seth
H. Big Crow, Sr. Administrator/Intervenor provide particulars of
the recent challenge of the Minnesota decision prohibiting the
false and misleading use of the name of Crazy Horse on a malt
liquor label.
* * * *
RE: Hornell Brewing Co., Inc., et al v. Minnesota
Department of Public Safety, Liquor Control
O.A.H. Docket No. 3-2400-9058-2
On December 27, 1995, the Minnesota Civil Liberties Union (MCLU)
[Randall D.B. Tigue, Volunteer Attorney, MCLU, 2620 Nicollet
Avenue, Minneapolis, MN 55408 (612/874-9903) and Kathleen Milner,
Legal Counsel, MCLU, 1021 West Broadway, Minneapolis, MN 55411
(612/522-3894)] along with the attorneys for Hornell and Heileman
Brewing companies (Relators) [Lawrence I. Fox, Thomas J. Mavin, and
T. Raymond Williams, 1211 Avenue of the Americas, New York, N.Y.
10036-8701] as co-counsel, filed a Petition for Writ of Certiorari
in the Minnesota Court of Appeals against the Minnesota Department
of Public Safety, Liquor Control Commission (Respondent) [Jeffery
F. Lebowski, Assistant Attorney General, Suite 500, 525 Park
Street, St. Paul, MN 55103-2106] and the Estate of Tasunke Witko,
Seth H. Big Crow, Sr., Administrator (Intervenor) [Robert P.W.
Gough, P.O. Box 25, Rosebud, South Dakota 57570 and Kenneth E.
Tilsen, Hamline University School of Law, 1536 Hewitt Avenue, St.
Paul, MN 55104-1284].
The Statement of the Case of the Relator provides the following
description of claims, defenses, issues litigated and result:
The present action was an administrative action to revoke the
brand registration of "Crazy Horse Malt Liquor", on the ground
that the brand label stated or implied in a false or
misleading manner a connection with an actual living or dead
American Indian Leader, within the meaning of Minnesota
Statutes Section 340A.11(d)[sic]. The department, in a
contested case hearing pursuant to the Administrative
Procedures Act, determined that the label did so falsely state
or imply a connection with a dead American Indian Leader, to-
wit "Crazy Horse."
Issues proposed to be raised on appeal:
a. Is Minnesota Statutes Section 340A.311(d) facially
unconstitutional and unconstitutional as applied, as a
violation of the First and Fourteenth Amendments to the United
States Constitution, and Article I, Section 3 of the Minnesota
Constitution?
b. Does the statute in question deprive Relators of equal
protection of the laws, in violation of the Fourteenth
Amendment to the United States Constitution?
* * * *
The brand label is considered "commercial speech" which has
more limited constitutional protections under the 1st Amendment
than does "political speech." Alcohol is a highly regulated
product, and under the 21st Amendment, state governments have
greater regulatory power than does the federal government. In the
context of commercial speech, the government may be permitted to
prohibit misleading speech that might otherwise be protected. See,
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 771-772, 48 L. Ed. 2d 346, 96 S. Ct.
1817 (1976).
The outcome of this legal challenge will determine whether the
Minnesota statute is constitutional. If the law is upheld, then it
could serve as a model for similar legislation throughout the
country.
Amicus briefs anyone??