First, this does not show a penis. The label depicts a malformed caricature of a human with
oversized feet, apparently a single arm and hand, and no discernible facial features. It also shows
a small protrusion that is where one would expect to find a penis on most male humans, but is
otherwise not at all identifiable as one. There are no constituent parts of a penis, no testicles, and
it is not engorged. It is a small nub that merely suggests a penis. It is certainly not sexually explicit. (7)

Second, it is extremely unlikely the average child would even notice the alleged penis on
the label, as it is extremely small compared to the rest of the figure. As a digital .jpeg file, the label
is 1,030x504 pixels (519,120 pixels total), while the alleged penis is approximately 8x14 pixels
(112 pixels total), or just over 2 one hundredths of one percent of the total label size (112 ÷ 519,120
= 0.0002157497). Defendants’ asserted interest in protecting children is not meaningfully
advanced by banning a beer label containing an alleged penis that a child would only be able to
notice upon close inspection of a product their parents should be keeping them away from, and
then applying quite a bit of imagination to it. Further, there is no state interest in keeping children,
nor anyone else, from seeing non-sexualized images of penises. If there is, the North Carolina
Museum of Art in Raleigh, North Carolina should be raided and shut down immediately. (See Dkt.
No. 38-1 at ¶¶ 31-33) (discussing various depictions of penises available to children at the North
Carolina Museum of Art in Raleigh, North Carolina.)

Finally, the asserted interest in protecting children is not plausible in light of Defendants’
actions after this suit was filed. Plaintiff filed this suit on August 26, 2021 and Defendants reversed
their rejection of the label (the only time this has happened since the regulation was enacted) on
September 7, 2021. It is apparent that Defendants did this in the hope of avoiding a decision on
the constitutionality of their regulation. Such an abrupt and unprecedented about-face when
confronted with a judicial challenge shows that Defendants did not possess a strong belief that the
Freezin’ Season label could actually harm children.

(7) Flying Dog Brewery previously prevailed against an alcohol licensing board that rejected
a label which appears to have been arguably more sexually explicit than the one here. See Flying
Dog Brewery, LLLP v. Mich. Liquor Control Comm’n, 597 Fed. App’x 342, 354 (6th Cir. 2015)
(denying qualified immunity to licensing officials who rejected “Raging Bitch” beer label alleged
offensiveness, which label “depicts a wild dog presenting human female genitalia as well as
possessing semblances of human breasts”).

If Defendants truly believe that this figure is so sexually immodest that it will psychically
scar children, then it should commit itself to closing down the North Carolina Museum of Art in
Raleigh, North Carolina to spare the children of North Carolina the trauma of potentially
witnessing a legion of uncovered penises, displayed in much greater detail. This art museum
contains depictions of uncovered penises all in places where children are far more likely to be than
in a liquor store. (PSoF at ¶ 31.) The museum displays sculptures such as the following:

● Figures with removed penises with clearly visible testicles sitting at child-height. (Id. at ¶
32, Decl. ¶¶ 19-21.)
● Cherubic angels with identifiable male genital bulges and shapes. (Id. at Decl. ¶ 22.)
● Satyrs with clearly visible uncircumcised penises. (Id. at Decl. ¶ 23.)
● A funerary mourner and a servant with clearly visible penises. (Id. at Decl. ¶¶ 24-25.)
● A child’s penis and testicles shown with extreme clarity. (Id. at Decl. ¶ 29.)
● Two children playing while naked, with clearly visible testicles and penises, and with one
child urinating. (Id. at Decl. ¶ 30.)
● The penises and testicles of several children and/or angels. (Id. at Decl. ¶¶ 31-37, 43.)
● The genital bulge of a child. (Id. at Decl. ¶¶ 38-39.)
● The genitals of infants. (Id. at Decl. ¶¶ 40-42.)
● A satyr with visibly turgid exposed male genitals chasing a young woman through the
woods. (Id. at Decl. ¶ 44.)
● Male genital bulges in states of action. (Id. at Decl. ¶¶ 47-48.)
The museum also contains an interactive “workshop” style area for children and families,
containing a mural of a naked male penis and testicles immediately next to a children’s work
station. (PSoF at ¶ 33.)

It goes without saying that children and other members of the general public can be exposed
to actual graphic depictions of penises, even those with great realistic detail, without suffering
mental or emotional trauma. For Defendants to claim that they are helping to prevent harm to
children by banning a beer label that, at most, shows an infinitesimally small suggestion of a penis
makes little sense. It is also not a position that Defendants actually believe, given that they so
quickly allowed the sale of beers with such an allegedly harmful label immediately after being
sued. They cannot plausibly argue that the Freezin’ Season label had any tendency to harm anyone
when they permitted distribution of the label the moment it seemed helpful to avoid an injunction.
Defendants are merely trying to come up with an ex post facto justification for their
unconstitutional viewpoint-based discrimination.