The matter was fully briefed and oral argument was heard on January 27, 1993. For the reasons set forth below, the undersigned respectfully recommends that summary judgment be granted in favor of plaintiffs on the First Amendment claim, and in favor of defendants on the five remaining claims.

BACKGROUND AND FACTS

The following facts are undisputed unless otherwise indicated. Plaintiff Hornell Brewing Company ("Hornell") is a New York corporation which maintains its principal place of business in Brooklyn, New York and produces and markets alcoholic and non-alcoholic beverages including "The Original Crazy Horse Malt Liquor" ("Crazy Horse"). Plaintiff Don Vultaggio is Chairman and co-owner of Hornell. In February, 1992, the Bureau of Alcohol, Tobacco and Firearms ("BATF") issued a Certificate of Label Approval ("COLA") to Hornell's bottler, G. Heileman Brewing Company ("GHBC"), authorizing the bottling and distribution of the Crazy Horse product. The certification process of BATF includes the consideration of whether the label is misleading, fraudulent, or obscene. Hornell introduced Crazy Horse in fourteen states in March 1992. To date, Crazy Horse is distributed in thirty-one states through over 200 wholesalers who resell to over 100,000 retailers. Hornell claims that Crazy Horse Malt Liquor was to be the first product in a series of Hornell beverages that celebrate the American West.

The introduction of the product caused a surge of indignation throughout Congress, seemingly initiated by the United States Surgeon General Antonia Novello. In April 1992, Dr. Novello held a press conference in Rapid City, South Dakota, where she criticized the choice of the name Crazy Horse for a malt liquor. She accused Hornell of "insensitive and malicious marketing" and encouraged the leaders of Indian nations to use public outrage to force Crazy Horse off the market. Subsequently, members of Congress joined the effort to prohibit use of the name Crazy Horse on the malt liquor product. By letter dated April 20, 1992, South Dakota Senator Larry Pressler directed Hornell to change the product's name or donate its proceeds to Native American causes because "defamation of this hero is an insult to Indian culture." Similarly, on April 27, 1992, Senator Tom Daschle wrote to Hornell expressing his displeasure with the use the name Crazy Horse. On May 19, 1992, Dr. Novello appeared before the House Select Committee on Children, Youth and Family. Representative Patricia Schroeder had called the hearing to consider legislation to prohibit use of the name Crazy Horse on alcoholic beverages. No representative of Hornell was permitted to appear at the hearing.

Subsequently, Representative Frank Wolf offered an amendment to the Treasury, Postal Service and General Government Appropriations Bill then under consideration. The amendment would have prohibited the use of trade names or brand names for alcoholic beverages that bore the name of any deceased individual of public prominence if the use of the name were likely to degrade or disparage the reputation of the individual. Representative Wolf made clear that the introduction of the Crazy Horse product was the impetus for the proposed amendment, stating, "The language has been put in because this brewer has developed an alcoholic beverage called Crazy Horse. Crazy Horse was an Indian chief who was known for urging his people not to drink alcohol." A Point of Order was sustained because the amendment attempted to create legislation through an appropriations bill in violation of House of Representatives rules. Wolf then proposed an amendment explicitly aimed at prohibiting the use of the name "Crazy Horse" on any alcoholic beverage. The House approved this bill and referred it to the Conference Committee. Rather than adopting the House bill, the Senate Committee adopted a resolution directing Hornell to negotiate with Sioux leaders and enter into a binding agreement abandoning the use of Crazy Horse as a brand name to "obviate the need for legislation."

Hornell claims in its moving papers that Hornell representatives met with Sioux leaders to negotiate a resolution. Hornell sought to protect its investment, distributors, suppliers, and work force, in the discontinuation of the Crazy Horse product. Hornell claims that the Sioux insisted on a general ban of Native American names and symbols in connection with the sale of all commercial products and services.  Because this demand was beyond the scope of Hornell's authority, negotiations were terminated.

Senators Daschle and Adams then proposed legislation banning use of the name Crazy Horse on alcoholic products. Senator Adams explicitly rebuked Hornell in his statement to the Senate, stating that Hornell had been "insensitive and disrespectful" to the Sioux's request that Hornell discontinue Crazy Horse Malt Liquor. The statute was enacted on October 1, 1992 and reads as follows:
 
Upon the date of enactment of this Act, the Bureau of Alcohol, Tobacco, and Firearms (ATF) shall deny any application for a certificate of label approval, including a certificate of label approval already issued, which authorizes the use of the name Crazy Horse an any distilled spirit, wine, or malt beverage product; Provided, that no funds appropriated under this Act or any other Act shall be expended by ATF for enforcement of this section and regulations thereunder, as it related to malt beverage glass bottles to which labels have been permanently affixed by means of painting and heat treatment, which were ordered on or before September 15, 1992, or which are owned for resale by wholesalers or retailers.
 
On November 17, 1992, defendant William T. Earle, Chief of the Industry Compliance Division of BATF issued a letter to G. Heileman Brewing Company ("GHBC"), which bottles Crazy Horse Malt Liquor for Hornell, stating that Public Law 102-393, § 633 "mandates the denial of labels [for Crazy Horse Malt Liquor] which have already been approved" and that "BATF is required to 'deny any application for a certificate of label approval, including a certificate of label approval already issued, which authorizes the use of the name Crazy Horse on any distilled spirit, wine, or malt beverage product.'"

Plaintiff filed its Complaint for declaratory and injunctive relief on December 4, 1992, and also moved the court for a preliminary injunction, preventing defendants from enforcing Public Law 102-393, § 633.

DISCUSSION

B. First Amendment

The fundamental principle of the First Amendment is that the government may not prohibit speech because the ideas expressed therein are offensive. Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."). When the government does regulate to prohibit speech based on its content, the regulation is presumptively invalid unless the speech falls into an unprotected category to which lesser standards apply. R.A.V. v. St. Paul, 120 L. Ed. 2d 305, 112 S. Ct. 2538, 2542 (1992). Commercial speech is not considered unprotected, but it does enjoy a lesser degree of First Amendment protection than protected speech. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456-57 (1978), reh'g denied, 439 U.S. 883 (1978).
 
1. Traditional Commercial Speech Inquiry

Commercial speech is defined as that speech which proposes a commercial transaction. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976). In order to regulate commercial speech the government must satisfy a four prong test. Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980). First, the expression must be protected by the First Amendment; that is, it must concern lawful activity and not be misleading. Central Hudson, 447 U.S. at 563-64. Second, the government must establish a substantial interest. 447 U.S. at 564. Third, the regulation must directly advance the governmental interest asserted. 447 U.S. at 564. Finally, the regulation must be no more extensive than necessary to serve the interest asserted. 447 U.S. at 565. See Board of Trustees v. Fox, 492 U.S. 469, 476-81 (1989).

The Crazy Horse Malt Liquor label is indisputably commercial speech. Friedman v. Rogers, 440 U.S. 1, 11 (1979) ("The trade name is used as part of a proposal of a commercial transaction and nothing more."); Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991) ("Product labels, which are part of a firm's marketing plan to provide certain information to the consumer, also constitute commercial speech."). n7 Thus, Public Law 102-393, § 633, which requires that BATF prohibit use of the name Crazy Horse on any distilled spirit, wine, or malt beverage, is subject to the test set forth in Central Hudson, 447 U.S. 557, and Board of Trustees, 492 U.S. 469. It is the finding of the undersigned that Public Law 102-393, § 633 does not satisfy the third and fourth prongs of this test and is unconstitutional.
 
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n7 The Court explicitly rejects plaintiffs' argument that use of the Crazy Horse name is actually the personal expression of Don Vultaggio, the Chairman and co-owner of Hornell Brewing, and therefore is entitled to the utmost constitutional protection. Plaintiff cannot seriously liken Vultaggio's freedom of expression in decorating his home in Southwestern style to the use of the name Crazy Horse on a nationally marketed alcoholic beverage.
 
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a. Crazy Horse Label is Lawful and Is Not Misleading

First, the Crazy Horse label, as commercial speech, is entitled to First Amendment protection because it concerns lawful activity and is not misleading. Central Hudson, 447 U.S. at 563-64. The sale and distribution of labeled malt beverage is a lawful activity under federal law. U.S. Const. amend. XXI, § 1 (repeal of Prohibition); Coors, 944 F.2d at 1547.  Additionally, the fact that the Crazy Horse COLA was approved by BATF on February 19, 1992 is evidence that the underlying conduct (use of the name on a malt liquor label) is legal. See 27 U.S.C. § 205(e) and 27 C.F.R. 7.20(b). Nor is the Crazy Horse name in any way misleading, as is demonstrated by BATF's own finding for COLA purposes. n8 Defendants concede both these points.
 
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n8 According to BATF regulations, malt beverage labels shall not contain any statement that is false or untrue in any particular, or that tends to create a misleading impression, any statement, design, device or representation of or relating to analyses, standards or tests which the Director finds to be likely to mislead the consumer, or any statement, design, device or representation of or relating to any guarantee which the Director finds likely to mislead the consumer. 27 C.F.R. 7.29(1), 7.29(4), 7.29(5). See also 27 C.F.R. 7.23(a), 7.23(b).
 
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b. Substantial Interest

Plaintiffs claim that Public Law 102-393, § 633 was enacted for the purpose of "protecting Native Americans from the offensive exploitation of a former Sioux leader's name." (Pls.' Mem. at 42.) 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. Texas v. Johnson, 491 U.S. 397, 399 (1989) (overturning conviction for flag desecration); see also Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 (1983) (striking ban on mailing contraceptive advertisements) (citing Carey v. Population Services International, 431 U.S. 678, 701 (1977) (striking a New York statute that banned advertisement of display or contraceptives)).

Illustrative of this in the context of commercial speech are lower court decisions addressing governmental efforts to prohibit commercial use of "Sambo's", an appellation with patently offensive connotations to African Americans. In Sambo's of Ohio, Inc. v. City Council of Toledo, 466 F. Supp. 177 (N.D. Ohio 1979), the city of Toledo revoked permits to display the name Sambo's on the premises of a restaurant. Because the case was decided before Central Hudson, the Sambo's court did not formally apply the Central Hudson test; however, the court did enjoin the city from enforcing the permit revocation, essentially holding that the government did not have a substantial interest in prohibiting use of the name merely because it was offensive to some. Sambo's of Ohio, 466 F. Supp. at 180 (prevention of the use of the name Sambo's because of its offensiveness is an unconstitutional deprivation of the First Amendment right of free speech). As the district court emphasized,
 
One of the basic premises of advertising is that if it is too offensive to too many people, its use will be counterproductive, for those who are offended will not only refuse to buy the product, but also, if they are sufficiently offended, they will attempt to persuade others to refuse also.

Similarly, in Sambo's Restaurants, Inc. v. Ann Arbor, 663 F.2d 686 (6th Cir. 1981), the Sixth Circuit held that the city of Ann Arbor should be enjoined from denying plaintiffs' use of the Sambo's name. The court rejected the notion that commercial speech is stripped of First Amendment protection because of its ancillary offensiveness. Sambo's Restaurants, 663 F.2d at 694-95. It stressed that while use of the name may offend some citizens, the city had failed to produce tangible evidence that use of the sign would, as the City alleged, sufficiently impede racial harmony or equality to justify suppression of protected commercial speech. 633 F.2d at 695.

The legislative history of Public Law 102-393, § 633 clearly suggests 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. See Coors, 944 F.2d at 1547 (relying on legislative history to determine government's interest). Surgeon General Antonia Novello stressed the distastefulness of the name Crazy Horse during her initial attacks on the product. On June 25, 1992, Senator Pressler stated in his remarks to the Senate that the use of the Crazy Horse label on alcoholic beverages "is an insult to American Indian culture . . . ."  Again on August 12, 1992, Pressler stated that Crazy Horse Malt Liquor "is seen by many as an insensitive and outrageous offense."  Representative Campbell, on July 1, 1992 also stated that the name is a "cultural insult to the Indian people."  The legislative history is replete with other references to the offensiveness and insensitive nature of the use of the name Crazy Horse.  If the only interest asserted by the government were its desire to abate or avert the perceived offensiveness of the Crazy Horse name, it would not constitute a substantial interest under the Central Hudson test. Indeed that is precisely the type of objective that is prohibited by the First Amendment and was rejected by the courts in both Sambo's cases. See Sambo's Restaurants, 663 F.2d at 695; Sambo's of Ohio, 466 F. Supp. at 179-80.

But that is not the end of our inquiry. Contrary to plaintiffs' argument, a particular piece of legislation may be valid where "the circumstances giving rise to [the] legislation have changed so long as the legislation continues to serve some valid and substantial governmental interest." Coors, 944 F.2d at 1549. In Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Supreme Court stated that reliance on an interest not asserted when the challenged statute was enacted into law "is permissible since the insufficiency of the original motivation does not diminish other interests that the restriction may now serve." Bolger, 463 U.S. at 70-71 (footnotes omitted)  [**24]  (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460 (1978); Doe v. Bolton, 410 U.S. 179, 190-191 (1973)). Even if this Court is not persuaded that health concerns were the catalyst for the legislation, the Court must not "restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted," United States v. O'Brien, 391 U.S. 367, 383 (1968) (quoting McCray v. United States, 195 U.S. 27, 56 (1904)), and must accept a properly assorted substantial interest of the government.

Defendants assert that the government's substantial interest in enacting Public Law 102-393, § 633 is the protection and preservation of the health, safety, and welfare of Native Americans by preventing the enhanced appeal of alcohol use among Native Americans due to the use of the name Crazy Horse on a malt liquor. (Defs.' Mem. at 18.) This argument is based on the premise that the use of the name Crazy Horse will stimulate the demand for malt liquor in Native American communities. (Id.) There is no evidence even indicating what Crazy Horse sales are, or what share of the market this product holds, let alone how much is consumed by Native Americans or whether alcohol consumption by Native Americans has increased since Crazy Horse was introduced.

Courts have repeatedly held that the government has a substantial interest in protecting citizens from the problems associated with alcohol. See Dunagin v. Oxford, 718 F.2d 738, 747 (5th Cir. 1983) (en banc), cert. denied, 467 U.S. 1259 (1984); Oklahoma Telecasters Ass'n v. Crisp, 699 F.2d 490, 500 (10th Cir. 1983), rev'd on other grounds sub nom., Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984). Plaintiffs have even conceded that the government does have a substantial interest in the asserted health concerns related to alcohol.

Like plaintiffs, the government has also relied on the legislative history to support its argument. At the hearing entitled, Confronting the Impact of Alcohol and Marketing on Native American Health and Culture, which was held before the House Select Committee on Children, Youth, and Families in May, 1992, research was presented documenting alcohol related health problems that afflict Native American society. (See Defs.' Mem. Ex. A.) The alcoholism rate among Native Americans is six times higher than  that of the general population. (Id. at 7.) Native American infants are twenty times more likely than other United States infants to be born with Fetal Alcohol Syndrome. (Id.) High rates of alcohol use and abuse among Native American teenagers are also reported. (Id. at 7-8.) Given the serious nature of these problems, the government does have a substantial interest in preventing further use of alcohol among Native Americans in order to reduce its deleterious effects. n9
 
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n9 In support of their asserted interest defendants also rely on the federal government's history of a special "trust relationship" with Native Americans. It is accurate that the government has assumed a duty toward Native Americans to protect certain lands that have been identified as "Indian lands." See United States v. Mitchell, 463 U.S. 206 (1983); Seminole Nation v. United States, 316 U.S. 286 (1942); Cramer v. United States, 261 U.S. 219 (1923); Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919); Cherokee Nation v. Georgia, 30 U.S. 1 (1831). Courts have also held that Native Americans have "unique legal status under federal law" and that Congress has "plenary power . . . to legislate on behalf of federally recognized tribes." Morton v. Mancari, 417 U.S. 535 (1974); Rupert v. Director, United States Fish and Wildlife Service, 957 F.2d 32, 34 (1st Cir. 1992). In this regard, several laws challenged as creating racial classifications have been upheld as being rationally 'related to the government's "unique obligations toward the Indians." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 673 n.20 (1979) (citing Morton v. Mancari, 417 U.S. 535, 555 (1974)). All these challenged classifications, however, in some way treated Native Americans differently from the rest of the population. See, e.g., United States v. Antelope, 430 U.S. 641, 645-46 (1977); Moe v. Confederated Salish & Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 479-81 (1976); Morton, 417 U.S. at 554, Rupert, 957 F.2d at 34-35. In this way, these cases are not analogous to Public Law 102-393, § 633.

Defendants also cite McNabb v. Bowen, 829 F.2d 787 (9th Cir. 1987), where the court required the Indian Health Service to pay for the costs of medical care for an Indian child where the state, which had primary responsibility in the area, refused to do so. While the court did acknowledge the trust relationship in placing the burden on the federal government, it also placed significant reliance on the Snyder Act which authorized the Indian Health Service to provide health benefits and care for Native Americans "for the relief of distress and conservation of health." McNabb, 829 F.2d at 792. Since Public Law 102-393, § 633 does not involve the actual provision of health benefits to Native Americans, the analogy is not appropriate. Therefore, the government's substantial interest does not rest on thus alternate "trust relationship" ground, but on the health concerns documented above.
 
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Therefore, oven though the avoidance of offensiveness is not a substantial interest for Public Law 102-393, § 633, the concerns currently asserted by the government do constitute a substantial interest. While Crazy Horse may not exacerbate alcohol use, the government's interest in preventing further alcohol abuse and its resultant problems is most certainly substantial. In light of this fact, the Court defers to the asserted interest of the government and finds that the prevention of the enhanced appeal of alcohol use among Native Americans is substantial, satisfying this prong of the Central Hudson test.

c. Direct Advancement

Although defendants have asserted a substantial interest, they have not established that Public Law 102-393, § 633 directly advances that interest. Central Hudson, 447 U.S. at 564. Central Hudson requires that the restriction must be narrowly drawn and that it "extend only as far as the interest it serves." 447 U.S. at 565. A nexus between the ends and the means must be established by the party who seeks to restrict the speech. Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85, 95-96 (1977);  Coors, 944 F.2d at 1550. This burden requires the government to demonstrate an "immediate connection" between the prohibition and the government's asserted interest. Coors, 944 F.2d at 1549 (citing Central Hudson, 447 U.S. at 566)). A mere "speculative, casual [sic: causal] relationship" is insufficient to satisfy this prong of the Central Hudson test. Sambo's Restaurants, 663 F.2d at 695. Similarly, ineffective or remote support for the existence of such a relationship is inadequate. Central Hudson, 447 U.S. at 564.

Here, the defendants failed to offer any evidence that suggests that Public Law 102-393, § 633 -- prohibiting only the use of the Crazy Horse label on liquor products -- directly advances their interest in preventing the enhanced appeal of alcohol use among Native Americans. Indeed, the legislative record as to the offensiveness of the Crazy Horse label would seem as likely to suggest the contrary proposition, that Native Americans would be discouraged from consuming an alcoholic beverage that dishonors the name  [**29]  of a revered Native American leader.

Defendants' primary argument on this element of Central Hudson is that the legislature is entitled to considerable deference in its belief that the statute would directly advance the interest. For this proposition, defendants rely on Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), where the Supreme Court upheld a prohibition of advertising for casino gambling. The government's substantial interest in Posadas was to reduce the demand for casino gambling among Puerto Rico residents. Posadas, 478 U.S. at 341. The Court held that the legislature was reasonable in its belief that advertising would lead to an increase in gambling and did not require empirical evidence of such a causal relationship. 478 U.S. at 341. Posadas is obviously distinguishable from the case at bar. First, the ordinance in Posadas prohibited the advertising of all casino gambling. In order to be even remotely analogous, Public Law 102-393, § 633 could have to prohibit all alcohol, or at least all malt liquor products, that carry Native American names or symbols on their labels. Alternatively, Posadas would be directly analogous if the Puerto Rico ordinance in Posadas would have had to prohibit the advertising of only one particular casino, not all casinos, and indeed, would have had to single out one casino because its name was offensive to the very people the casino's advertising was seeking to attract.

Furthermore, in Posadas, the Court was able to defer to the legislature on the basis of precedent, see Dunagin v. Oxford, 718 F.2d 738, 747 (5th Cir. 1983), cert. denied, 467 U.S. 1259 (1984); Oklahoma Telecasters Assoc. v. Crisp, 699 F.2d 490, 501 (10th Cir. 1983), that established the causal relationship between advertising and consumption. See Coors, 944 F.2d at 1550. Here, there is no comparable precedent that suggests, let alone establishes, an immediate connection between the use of one specific Native American name, Crazy Horse, and increased consumption of alcohol by Native Americans. The government asks the Court to make a leap of faith and logic on the point by concluding that because advertising may increase consumption and a product label is a form of advertising, the mere use of the Crazy Horse label product will enhance consumption. It is true that in a general sense of the word "advertising", a product label is a form of advertising. But that is not to say that a product label, standing alone, can have a remotely comparable effect on product consumption as would all advertising, such as print ads, billboards, and radio and television commercials.

Defendants base their claim that Crazy Horse will increase alcohol consumption among Native Americans on the naked premise that because Crazy Horse was such a revered leader, Native American youths will be inclined to consume Crazy Horse, in an effort to identify with the leader and the noble Native American heritage. In testimony before the Committee, some witnesses did imply that alcohol abuse among Native Americans would be exacerbated by the marketing of Crazy Horse Malt Liquor for this reason.

The Court, however, is not at all convinced that the use of a revered Native American name may cause any discernible increase in alcohol consumption among Native Americans, particularly when plaintiffs have indicated, and defendants have not disputed, that Crazy Horse has not been marketed specifically toward Native Americans and plaintiffs' use of this name, according to legislative findings is, if anything, offensive to Native Americans. The government's theory, in short, is too remote and speculative to satisfy the direct advancement prong of Central Hudson, 447 U.S. at 564 (prohibition fails under First Amendment if it provides only "ineffective or remote support" for governmental objective). While empirical evidence is not required, absent such evidence the government's argument is merely speculation.

Plaintiffs also argue that because Public Law 102-393, § 633 is underinclusive, it does not directly advance the government's interest. It is true that underinclusiveness is not necessarily fatal to a restriction of commercial speech, Posadas, 478 U.S. at 342; however, the fact that other alcoholic products bear Native American names and symbols does weaken the direct advancement argument. In Posadas, the government did not prohibit the advertisement of all gambling, only casino gambling. Posadas, 478 U.S. at 342. The court found that this underinclusiveness did not indicate that the prohibition did not directly advance to interest of reducing the demand for games of chance. The legislature apparently reasonably believed that greater risks were involved in casino gambling than other types of nonrestricted gambling. Here, the government claims that the cultural distinctions between Crazy Horse and other Native American names that have been used in this fashion serve to obviate any apparent underinclusiveness. According to the government, Crazy Horse was such a significant cultural and spiritual leader in Native American society, the use of his name, unlike the other names, will engender more tendency to drink the product bearing his name, as a sort of tribute to him. The logic of this conceit is not entirely persuasive to the Court. Indeed, it merely reinforces the Court's conclusion that the government's explanation for singling out the Crazy Horse label rests on a precarious foundation of speculation.

The burden is on the government to establish that there is an immediate connection between the interest and the restriction on speech; mere plausibility is insufficient. Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85, 95-96 (1977); Coors, 944 F.2d at 1550; Sambo's Restaurants, 663 F.2d at 695; Edge Broadcasting Co. v. United States, 732 F. Supp. 633, 639 (E.D. Va. 1990), aff'd without op., 956 F.2d 263 (4th Cir. 1992), cert. granted, 121 L. Ed. 2d 683, No. 92-0486, 1992 U.S. LEXIS 7997 (Dec. 14, 1992). The government has not satisfied its burden.

In sum, the government has failed to show how Public Law 102-393, § 633 directly advances the substantial interest of preventing enhanced alcohol use among Native Americans. "The impact on these laudable goals by [the government] is speculative at best." Sambo's Restaurants, 663 F.2d at 695. The statute fails to satisfy the third prong of the Central Hudson test. See Central Hudson, 477 U.S. at 564.

d. Proportion to the Interest Asserted

The fourth prong that the government must satisfy is that the regulation must be in proportion to the interest asserted. Board of Trustees v. Fox, 492 U.S. 469, 476 (1989); see also Central Hudson, 447 U.S. at 556-57. A regulation is in proportion if it is no more extensive than necessary to further the government's interest. Central Hudson, 557 U.S. at 569-70.  The Supreme Court clarified in Board of Trustees v. Fox, 492 U.S. 469 (1989) that this prong of Central Hudson should not be interpreted as a "least restrictive means" test. Board of Trustees, 492 U.S. at 477. Instead, the regulation must be narrowly tailored to the government's interest, 492 U.S. at 477, and must not "burden substantially more speech than is necessary to further the government's interest." 492 U.S. at 478 (citing Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 2758, 105 L. Ed. 2d 661 (1989)). The Court in Board of Trustees noted that it is "loath to second guess the Government's judgment to that effect," 492 U.S. at 478, but concluded that there must be a "reasonable fit" between the regulation and the government's interest and that the cost of burdening speech must be "carefully calculated." 492 U.S. at 480. The Court explicitly rejected the less rigorous rational basis test typically used in equal protection analysis for this prong of Central Hudson.

Although commercial speech may enjoy less protection than political speech, the Supreme Court, in fact, accords it a high value unless it is false or misleading or causes distinctive adverse effects which directly flow from the commercial speech regulated. Discovery Network, Inc. v. Cincinnati, 946 F.2d 464, 469-71 (6th Cir. 1991), cert. granted, 112 S. Ct. 1290 (1992) (citing Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986); Young American Mini Theatres, Inc., 427 U.S. 50 (1976)). It is the government's claim that the use of the name Crazy Horse, on its own, will have adverse effects on the Native American population by increasing alcohol use and thereby exacerbating the problems correlated with alcohol abuse. Assuming, arguendo, this precept, however dubious, complete revocation of the Crazy Horse Malt Liquor label is not a reasonable fit to this interest. The prohibition presents use of the label anywhere simply to protect a relatively small segment of the population. The prohibition is not, as it could have bean, limited to Native American reservations or narrow geographic areas where there is a demonstrably high concentration of Native Americans.

Nor does this sweeping prohibition take into account sensible alternatives that would not require any direct limit on use of the Crazy Horse label, such as education programs to inform Native Americans of the dangers of alcohol. Another possibility is an additional warning on the Crazy Horse bottle informing Native Americans of the dangers of alcohol or of the high incidence of alcoholism and its effects in Native American communities. While the least restrictive means is not required, the regulation must be narrowly tailored to the government's interest. With obvious alternatives available that do not hinder speech in any way, or hinder it far less, the statute is not, by any means, a reasonable fit.

In sum, it is the finding of this Court that Public Law 102-393, § 633 is more extensive than necessary to serve the interest asserted by the government, and as such also fails the fourth prong of the Central Hudson test.
 
CONCLUSION

For the reasons stated above, it is respectfully recommended that summary judgment in favor of the plaintiff be granted on the basis that Public Law 102-393, § 633 violates the First Amendment of the Constitution.

Although this Court has found that Public Law 102-393, § 633 violates the First Amendment for the reasons discussed above, this decision should not be read as either condoning or endorsing plaintiffs' choice of name for their product Crazy Horse Malt Liquor. The Court can well appreciate that the use of the name of a revered Native American leader, who preached sobriety and resisted exploitation under the hand of the United States government, is offensive and may be viewed as an exploitation of Native Americans throughout this country. The choice may be particularly insensitive given the ample documentation of alcohol abuse and its destructive results among Native Americans. Nevertheless, a price we pay in this country for ordered liberty is that we are often exposed to that which is offensive to some, perhaps even to many. It is from our exposure to all that is different that we best learn to address it, change it, and sometimes tolerate and appreciate it. "Freedom of speech may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (Douglas, J.). To those who are offended by the use of the Crazy Horse Malt Liquor label, the directive of the district court in Sambo's of Ohio, Inc. v. Toledo, 466 F. Supp. 177, 180 (N.D. Ohio 1979) is particularly apt:
 
If they are offended by the word [Crazy Horse] not only can they refuse to patronize the plaintiffs, but they, too, can erect signs, carry placards, or publish advertisements designed to persuade others to refuse to patronize the plaintiffs. That is what freedom of speech is all about. One cannot have freedom of speech for himself if it can be denied to others, nor is speech free if only innocuous utterances are permitted. . . . It would be selling our birthright for a mess of pottage to hold that because language is offensive and distasteful even to a majority of the public, a legislative body may forbid its use.
 
It is in this spirit that the undersigned respectfully recommends that Public Law 102-393, § 633 be declared an unconstitutional violation of the First Amendment.

JOHN M. AZRACK

UNITED STATES MAGISTRATE JUDGE