Legal Commentary

The U.S. Court of Appeals for the Fourth Circuit recently announced a deeply flawed decision upholding the constitutionality of restrictions on alcohol advertising in "college student publications" in the Commonwealth of Virginia.  I'm willing to concede that some college students in Virginia may drink too much, based at least in part on the anecdotal evidence related to me by my husband, a University of  Virginia grad.  Nonetheless, the advertising restrictions involved in the decision at hand, Educational Media Co. at Va. Tech Inc. v. Swecker (4th Cir. 2010), were so piecemeal and nonsensical that I seriously doubt they would have much effect on the problem of underage and abusive drinking. 

Here are the facts.  The Commonwealth of  Virginia?s Alcoholic Beverage Control Board adopted regulations restricting various types of alcohol advertising in publications aimed at college students.  The regulations allowed ?college student publications? to advertise alcoholic beverages ?in reference to a dining establishment? but forbade references to brands or prices.  The regulations did not allow ?college student publications? to run any other kind of ad for beer, wine or mixed beverages.  Two college newspapers challenged the ad restrictions both facially and as applied on First Amendment grounds, contending that each newspaper lost about $30,000 per year in ad revenue because of the restrictions.  The district court declared the regulations facially unconstitutional, but the U.S. Court of Appeals for the Fourth Circuit reversed, holding that the regulations met the demands of Central Hudson ?s intermediate scrutiny. 

 Virginia?s asserted interests in combating underage drinking and abusive drinking by college students were substantial, of course, and the court accepted the argument that the advertising ban would directly and materially decrease demand for alcohol by both underage and ?legal? college students because of the ?inimitable role on campus? that college newspapers play in communicating with students.  [If only newspapers had as much power or influence as the court grants them!!!!]  The court seemed to almost switch the burden of proof to the newspapers to disprove that the advertising restrictions directly and materially advanced the Commonwealth's aims, stating:  ?The college newspapers fail to provide evidence to specifically contradict this link [between advertising and increased demand for alcohol by college students] or to recognize the distinction between ads in mass media and those in targeted local media.?    

Finally, the court found that the advertising ban was ?narrowly tailored to serve [Virginia?s] interest of establishing a comprehensive scheme attacking the problem of underage drinking and dangerous drinking by college students.?  The court found the restrictions to be narrowly tailored because they only affected certain types of alcohol advertisements and certain types of publications, namely, ?college student publications.?  Thus, the advertising scheme "does not, on its face, affect all possible student publications on campus,? [which tends to suggest it won't be that effective, doesn't it?]  Moreover, the court described the advertising regulations as a ?cost-effective? part of a comprehensive scheme that includes education and enforcement.  The Fourth Circuit reversed the district courts grant of summary judgment, vacated its injunction, and remanded for proceedings consistent with its opinion.  Was this case correctly decided? 

Dissenting Judge Moon thought not.  He wrote:  ?The regulation not only impermissibly infringes upon the constitutional rights of adults (with the result of limiting the adult readership to receiving only speech that the Commonwealth deems appropriate for persons under the age of twenty-one), it also infringes upon the rights of those readers who are not yet twenty-one, who nonetheless have a protected interest in receiving truthful, non-misleading information about a lawful product that they will soon have the legal right to consume.  And of course the advertisers have the right to communicate such information.?  He also wrote that the advertising regulations were so inconsistent regarding the types of advertisements they allowed and those they didn?t that it made to hard to argue that they materially advanced Virginia?s asserted interests.  I couldn't agree more.