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FEDERAL JUDGE RULES: 'CRAZY HORSE' LAW UNCONSTITUTIONAL; BAN ON MALT BEVERAGE LABEL VIOLATES FREE SPEECH

 BROOKLYN, N.Y., April 13 /PRNewswire/ -- Federal Judge Carol Amon of the United States District Court for the Eastern District of New York has decided that the Congressional statute banning the use of the name "Crazy Horse" on alcoholic beverage labels is an unconstitutional infringement of the First Amendment rights of the Hornell Brewing Company, which produces "The Original Crazy Horse Malt Liquor" (tm). Judge Amon adopted Magistrate Joan M. Azrack's report and recommendation which found that the government had failed to satisfy the Supreme Court's Central-Husdon test governing the regulation of commercial speech.
 "The Original Crazy Horse Malt Liquor" was introduced one year ago by Hornell, a Brooklyn, N.Y.-based producer of malt beverage and soft drink products, and was immediately criticized by the U.S. Surgeon General, Antonia Novello, as offensive to Native Americans. The Surgeon General garnered support from leaders of the Oglala Sioux Tribe, to which Chief Crazy Horse belonged, and key congressional members who, in October 1992, passed a rider to the Treasury Department's Appropriations bill banning the use of the name. Hornell, and its chairman, Don Vultaggio, immediately sued to invalidate the legislation and enjoin the government from its enforcement. Following a hearing, Magistrate Azrack recommended in a report to Judge Amon, that the statute be struck down as unconstitutional.
 In her recommendation that the statute be invalidated, which was endorsed by Judge Amon, Magistrate Azrack found that "the government's initial objective in enacting the Crazy Horse statute was to protect Native American communities from what it perceived to be an offensive exploitation of the revered Sioux leader's name" and that the Surgeon General has stressed the distastefulness of the name during her attacks on Hornell's product.
 Adopting the magistrate's recommendation, Judge Amon held that such governmental censorship violates the First Amendment. The decision endorsed the Magistrate's report finding that "the Crazy Horse label -- as commercial free speech, is entitled to First Amendment protection because it concerns lawful activity and is not misleading. It bears repeating that the desire to protect society, or certain members of society from the purported offensiveness of particular speech is not a substantial interest which justifies its prohibition."
 Judge Amon, citing the Supreme Court's March 24, 1993 decision in Cincinnati vs. Discovery Network, Inc. concluded that the government failed to meet its burden of establishing a reasonable fit between the purported government objective of promoting Native American health interests and the outright ban of the single name "Crazy Horse" on a label, especially when "all other potentially appealing names of revered and important Native American icons, such as Sitting Bull and Big Foot, or any other names or symbols that might appeal to Native Americans, are permitted to appear on alcohol labels."
 In fact, the Magistrate's report rejected the government's claim that using a Native American war hero's name on a beer label alone would increase consumption by Native American youths. On the contrary, the Magistrate noted that the label's alleged offensiveness "suggest(s) -- that Native Americans would be completely discouraged from consuming an alcoholic beverage that dishonors the name of a revered Native American leader."
 Lawrence I. Fox, a litigation partner in the New York office of the national law firm of McDermott, Will & Emery, together with T. Raymond Williams and Nathalie Gilfoyle, partners from the firm's Washington, D.C. office, represented Hornell and Vultaggio before the court. Fox stated: "We are pleased with the decision which reaffirms Supreme Court precedent. We felt strongly from the beginning that Hornell's use of the name 'Crazy Horse' was protected by the First Amendment, and the court's confirmation is gratifying. Simply stated, our government has no business acting as a national censor. A product name should not be banned because someone is offended by the name. To permit such censorship would serve to undermine the fundamental First Amendment principles upon which our society rests."
 "This is an extremely important decision," Fox continued, "not just for the owners of Hornell Brewing Company, but for everyone concerned about censorship and free speech. If the 'Crazy Horse' statute was allowed to stand, any product name or advertising campaign which was construed as politically incorrect could be regulated or banned to appease special interests."
 The owners of Hornell Brewing Company were equally pleased. According to Don Vultaggio, the company never intended to offend Native Americans and was surprised by the outcry precipitated by Novello. "We selected the name to celebrate our interest in the American West, and the life and accomplishments of a great American warrior who played a prominent role in our history," Vultaggio said. "We did not anticipate that the name would offend anyone. We feel vindicated by this decision because businesses like ours should have the right to introduce and market a lawful product without the fear of government intervention. That's what freedom of speech is all about."
 Vultaggio noted that Hornell never expected to find itself in the middle of a constitutional challenge. "The controversy surrounding Crazy Horse Malt Liquor became much bigger than the selection of one name," he concluded.
 The company's owners have had a longstanding interest in the American West. "The Original Crazy Horse Malt Liquor" is currently sold in a bottle based on the packaging from the Montana Brewery in the late 1800s. 'Crazy Horse' was the first in a series of products introduced with a western motif which includes Arizona Iced Tea(tm) and James Bowie Kentucky Hills Ltd. Pilsner Beer(tm). The company also plans brand extensions including Annie Oakley Lite Beer(tm) and a 16-oz. can for "The Original Crazy Horse Malt Liquor."
 -0- 4/13/93
 /NOTE TO EDITORS: A photo is available immediately from the Wieck Photo Database to any newspaper or magazine with a telephoto receiver or electronic darkroom that can accept overhead transmissions. Photos also can be retrieved via the Macintosh. To electronically retrieve photos or to obtain details regarding the Macintosh, call 214-416-3686. There is no charge to media outlets for this service./
 /CONTACT: Hank Shafran, 617-227-2111, ext. 360; or Lawrence I. Fox, Esq., 212-768-5403 for Hornell Brewing Company/


CO: Hornell Brewing Company ST: New York IN: FOD SU:

CH -- NE009 -- 5200 04/13/93 11:56 EDT
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Date:Apr 13, 1993
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