Wednesday, October 26, 2005

COLUMN -- All of our liberties are intertwined

Posted by Craig Westover | 5:27 AM |  

Wednesday, October 26, 2005

Having successfully challenged Minnesota cosmetology licensing laws on behalf of African hair braiders, those pesky litigators from the Institute for Justice are at it again. Now they're suing the state so well-heeled wine connoisseurs may more conveniently purchase a robust Bordeaux. Be still, my heart. When beaded cornrows are not your thing, and one judges wine by whether the box fits in the refrigerator, these legal nits seem a tad trite. So why care?

"All rights are logically connected," answers Nick Dranias, an Institute for Justice attorney with the Minnesota chapter.

Care because our personal freedoms cannot be separated from economic liberty — our freedom to pursue a living. Lest we forget, the war that won the freedoms in the Bill of Rights was in no small part a response to an unfair 3-pence tea tax.

Unfortunately, legislative violations of economic liberty are not as vigorously pursued as the more fashionable First Amendment cases. That thinking, Dranias said, is somewhat understandable, but wrong.

"Making a case for economic liberty often focuses on the margins," he said. "But there's always a connection to the larger context of personal freedom."

Case in point is Crockett v. Minnesota Department of Public Safety, the Institute for Justice suit on behalf of Fieldstone Vineyards of Morgan, Minn., White Winter Winery of Iron River, Wis., and consumer Kim Crockett of Deephaven, Minn.

Motivated by economic liberty issues, Crockett v. Minnesota DPS is a commercial speech case. It contends that advertising regulations applied specifically to wineries are a free-speech violation under the First Amendment and a violation of equal protection of the law under the 14th Amendment.

The state of Minnesota forbids all in-state and out-of-state wineries from accepting online orders from Minnesotans. This is puzzling. Wineries may ship wine directly to Minnesotans, but only when orders are placed by mail, fax or telephone. More puzzling, wineries may not advertise — online or anywhere else — their ability to ship wine directly. Minnesota liquor stores, however, may sell wine directly from their Web sites. They may advertise their direct shipping services. A winery that does so is subject to criminal prosecution, fines and jail time.

"Every freedom, including the freedom of speech, requires the ability to act," Dranias said. "Obtaining the means to speak requires the ability to earn a living. A First Amendment case that protects the free flow of information between wineries and consumers underscores the fundamental connection between freedom of speech and economic liberty."

Is Dranias over-theorizing? Is he advocating elimination of all regulation? Not "all" regulation, but he is arguing that legislators take the constitutional phrase "necessary and proper" to heart before mucking around in the free market.

Regulation and its next-of-kin central planning restrict the free flow of information in commercial transactions. Minnesota law prevents wineries from informing consumers about products and services they provide. It is a disincentive for consumers to buy "outside the box." Therein lies the rub and insight into the consequences of unrestrained government.

The Minnesota Licensed Beverage Association, whose members are the status quo distribution channel for wine, beer and spirits, defends commercial speech restrictions on wineries. The purpose of the law, it states, is ensuring the collection of sales taxes and defending the state's homegrown wine industry. It also throws in little paternalism.

"And if you're going to allow wine to be sold directly to the consumer, the next step is beer," Jim Farrell, a former state lawmaker and current head of the MLBA, has said. "You can bet your bottom dollar that Anheuser-Busch and Miller and Coors are going to say, 'If those guys can sell wine on the Internet, I want to sell beer on the Internet.' "

Such reasoning (and lobby pressure) leads legislators to overlook principle in favor of their own interests. Thus a constitutionally flawed law passes that ranks tax collection over entrepreneurial effort and limits competition — not to protect in-state wineries, but to protect the existing distribution channel from winery competition. Firms selling beer by the millions of barrels aren't interested in boutique Internet sales, but a dose of paternalism provides cover for political self-interest.

So who is hurt? Entrepreneurial wineries, wine consumers and yes, all of us whose personal freedoms rest on the foundation of economic liberty. Who wins? Big government and the entrenched distribution channel. Standing in their way, however, are those pesky litigators from the Institute for Justice.

Westover is an Afton writer who blogs at www.craigwestover. E-mail him at Westover's daughter was an intern last summer at the Institute for Justice and researched the winery case.

Category: Column, Individual Liberty, Institute for Justice