Educational Media Co. at Virginia Tech v. Swecker

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EDUCATIONAL MEDIA COMPANY AT 

VIRGINIA TECH, INCORPORATED;

CAVALIER DAILY, INCORPORATED, The

Cavalier Daily, Incorporated,

Plaintiffs-Appellees,

v.

SUSAN R. SWECKER, Commissioner,

Virginia Alcoholic Beverage Control

Commission; PAMELA O’BERRY

EVANS, Commissioner, Virginia

Alcoholic Beverage Control

Commission; W. CURTIS COLEBURN,

III, Chief Operating Officer Virginia

Department of Alcoholic Beverage

Control; FRANK MONAHAN, Director,

Law Enforcement Bureau of the

 No. 08-1798

Virginia Department of Alcoholic

Beverage Control; ESTHER H.

VASSAR, Commissioner, Virginia

Alcoholic Beverage Control

Commission,

Defendants-Appellants.

THOMAS JEFFERSON CENTER FOR THE

PROTECTION OF FREE EXPRESSION;

STUDENT PRESS LAW CENTER;

COLLEGE NEWSPAPER BUSINESS AND

ADVERTISING MANAGERS,

Amici Supporting Appellees. 

2 EDUCATIONAL MEDIA CO. v. SWECKER

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

M. Hannah Lauck, Magistrate Judge.

(3:06-cv-00396-MHL)

Argued: October 29, 2009

Decided: April 9, 2010

Before SHEDD, Circuit Judge,

HAMILTON, Senior Circuit Judge, and

Norman K. MOON, United States District Judge

for the Western District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge Shedd

wrote the majority opinion, in which Senior Judge Hamilton

joined. Judge Moon wrote a dissenting opinion.

COUNSEL

ARGUED: Catherine Crooks Hill, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-

ginia, for Appellants. Rebecca Kim Glenberg, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA,

Richmond, Virginia, for Appellees. ON BRIEF: William C.

Mims, Attorney General, Stephen R. McCullough, Solicitor

General of Virginia, Maureen Riley Matsen, Deputy Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF

VIRGINIA, Richmond, Virginia, for Appellants. Frank M.

Feibelman, Cooperating Attorney, ACLU OF VIRGINIA,

Richmond, Virginia, for Appellees. J. Joshua Wheeler, Robert

M. O’Neil, THE THOMAS JEFFERSON CENTER FOR

THE PROTECTION OF FREE EXPRESSION, Charlottes-

ville, Virginia, for the Thomas Jefferson Center for the Pro-

EDUCATIONAL MEDIA CO. v. SWECKER 3

tection of Free Expression, Amicus Supporting Appellees.

Katherine A. Fallow, Carrie F. Apfel, Garrett A. Levin, JEN-

NER & BLOCK, LLP, Washington, D.C.; Frank D. LoMonte,

Michael C. Hiestand, STUDENT PRESS LAW CENTER,

Arlington, Virginia, for Student Press Law Center and Col-

lege Newspaper Business and Advertising Managers, Amici

Supporting Appellees.

OPINION

SHEDD, Circuit Judge:

The Commonwealth of Virginia, through its Alcoholic

Beverage Control Board ("the Board"), regulates advertise-

ments for alcohol. In this action, Educational Media Company

at Virginia Tech (The Collegiate Times) and The Cavalier

Daily, Inc. (The Cavalier Daily) (collectively, "the college

newspapers") argue that two of the Board’s regulations

restricting alcohol advertisements (3 Va. Admin. Code §§ 5-

20-40(A) & (B)(3)) violate their First Amendment rights. The

district court granted the college newspapers’ motion for sum-

mary judgment, declared both provisions facially unconstitu-

tional, and permanently enjoined their enforcement. On

appeal, the Board challenges only the court’s invalidation of

§ 5-20-40(b)(3). For the reasons set forth below, we reverse

and remand.

I.

We review the district court’s order granting summary

judgment de novo, viewing the evidence in the light most

favorable to the Board. Hill v. Lockheed Martin Logistics

Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004). The Board, a

subsidiary of the Department of Virginia Alcoholic Beverage

Control, is charged with regulating the importation and distri-

bution of alcohol within the Commonwealth of Virginia. See

4 EDUCATIONAL MEDIA CO. v. SWECKER

Va. Code Ann. § 4.1-103. To carry out this duty, the Board

has the authority to "promulgate reasonable regulations." Va.

Code Ann. § 4.1-111(A).

The Board exercises its authority in various ways to fight

illegal and abusive drinking on college campuses in the Com-

monwealth. For example, the Board prohibits various types of

advertisements for alcohol in any "college student publica-

tion," which it defines as any college or university publication

that is: (1) prepared, edited, or published primarily by its stu-

dents; (2) sanctioned as a curricular or extracurricular activity;

and (3) "distributed or intended to be distributed primarily to

persons under 21 years of age." 3 Va. Admin. Code § 5-20-

40(B)(3). Qualifying publications may not print advertise-

ments for beer, wine, or mixed beverages unless the ads are

"in reference to a dining establishment." Id. These exempted

alcohol advertisements may not refer to brand or price, but

they may use five approved words and phrases, including

"A.B.C. [alcohol beverage control] on-premises," "beer,"

"wine," "mixed beverages," "cocktails," or "any combination

of these words." Id.

In addition to this advertising ban, the Board publishes edu-

cational pamphlets on the dangers of underage and binge

drinking on college campuses, targeted at both underage stu-

dents and their parents. Further, the Board enforces its regula-

tions by carefully allocating its limited number of officers to

target "big events that are likely to gather college students,"

J.A. 257, and the Board gives grants to colleges and college

communities to supplement these targeted efforts.

The Collegiate Times is a student-run newspaper at Vir-

ginia Polytechnic Institute and State University, and The Cav-

alier Daily is a student-run newspaper at the University of

Virginia. The newspapers rely on advertisement revenue to

EDUCATIONAL MEDIA CO. v. SWECKER 5

operate, and because of the ban embodied in § 5-20-40(B)(3),

each loses approximately $30,000 a year in advertising revenue.1

The college newspapers filed a complaint, alleging that § 5-

20-40(B)(3) violates their First Amendment rights. The col-

lege newspapers mounted both facial and as-applied chal-

lenges to § 5-20-40(B)(3). For relief, the college newspapers

sought a declaration that § 5-20-40(B)(3) is unconstitutional

and an injunction prohibiting its enforcement. After both sides

moved for summary judgment, the district court declared § 5-

20-40(B)(3) facially unconstitutional as an invalid ban on

commercial speech.2 Subsequently, the court permanently

enjoined the enforcement of § 5-20-40(B)(3). The Board now

appeals.

1

The district court determined that both college newspapers were "col-

lege student publications" as defined by § 5-20-40(B)(3). J.A. 73 & 75.

However, the parties agree that a majority of the readership of the college

newspapers is over the age of twenty-one. J.A. 85. Though this concession

appears to preclude the college newspapers from qualifying as "college

student publications," in a pre-enforcement challenge, the college newspa-

pers need only demonstrate "‘a credible threat of prosecution’ under the

statute or regulation." Virginia Soc’y for Human Life, Inc. v. FEC, 263

F.3d 379, 386 (4th Cir. 2001) (quoting Babbitt v. United Farm Workers

Nat’l Union, 442 U.S. 289, 298 (1979)). Here, an Alcoholic Beverage

Control Compliance Officer specifically advised The Collegiate Times that

they would violate § 5-20-40(B)(3) if they published a specific alcohol

advertisement, J.A. 73, and the Chief Operating Officer and Secretary to

the Board of the Department of Alcoholic Beverage Control opined that

both college newspapers would qualify as college student publications.

J.A. 523. Therefore, regardless of whether § 5-20-40(B)(3) applies to these

college newspapers, they have a sufficient credible fear of prosecution

under this regulation.

2

The district court did not reach the college newspapers’ alternative

arguments that § 5-20-40(B)(3) violates the First Amendment because (1)

as-applied, it unconstitutionally restricts commercial speech under Central

Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S.

557 (1980), and (2) on its face and as-applied, it unconstitutionally dis-

criminates against a particular segment of the media under Pitt News v.

Pappert, 379 F.3d 96, 109 (3rd Cir. 2004). Though the college newspapers

reiterate these alternative arguments on appeal, we decline to address them

in the first instance.

6 EDUCATIONAL MEDIA CO. v. SWECKER

II.

The Board argues that the district court erred by determin-

ing that § 5-20-40(B)(3) facially violates the First Amendment.3

Both parties agree that to determine whether a regulatory bur-

den on commercial speech violates the First Amendment, we

apply the four-part test set forth in Central Hudson Gas &

Electric Corp. v. Public Service Commission of New York,

447 U.S. 557, 566 (1980).

Under Central Hudson, we must first consider whether the

commercial speech is protected by the First Amendment. If it

is, the government must then assert a "substantial" interest to

justify its regulation. We must then decide whether the regula-

tion directly advances the government’s interest and whether

the regulation is not "more extensive than is necessary to

serve that interest." Id. This test applies to both facial and as-

applied challenges. See, e.g., Posadas de Puerto Rico Assoc.

v. Tourism Co. of Puerto Rico, 478 U.S. 328, 339-44 (1986)

(facial challenge); Greater New Orleans Broad. Ass’n, Inc. v.

United States, 527 U.S. 173, 183-95 (1999) (as-applied chal-

lenge). However, the type of challenge to a provision — facial

or as-applied — dictates the state’s burden of proof.

"[A] facial challenge to an ordinance restricting commer-

cial speech may be resolved as a question of law when the

government meets the burden placed on it by Central Hud-

son." Penn Advertising of Baltimore, Inc. v. Schmoke, 63 F.3d

1318, 1322-23 (4th Cir. 1995), vacated on other grounds,

Penn Advertising of Baltimore, Inc. v. Schmoke, 518 U.S.

1030 (1996). The government may meet this burden by refer-

3

The Board also argues that the district court erred because it enter-

tained a facial challenge to § 5-20-40(B)(3). Although there is judicial dis-

favor of facial challenges, there is no proscription on such challenges. See

Washington State Grange v. Washington State Republican Party, 552 U.S.

442, 449-51 (2008) (discussing the problems with facial challenges with-

out banning their use); West Virginia Ass’n of Club Owners and Fraternal

Serv. Inc. v. Musgrave, 553 F.3d 292, 300-02 (4th Cir. 2009) (same).

EDUCATIONAL MEDIA CO. v. SWECKER 7

ence to the challenged regulation and its legislative history.

Id. at 1323. Therefore, a court considers the facial constitu-

tionality of a regulation without regard to its impact on the

plaintiff asserting the facial challenge. Id.

A.

We first consider whether the First Amendment protects the

commercial speech in this case. To qualify for First Amend-

ment protection, commercial speech must (1) concern lawful

activity and (2) not be misleading. Central Hudson, 447 U.S.

at 566-68. The Board argues that § 5-20-40(B)(3) only regu-

lates commercial speech concerning unlawful activity because

it only applies to student newspapers which are "distributed

or intended to be distributed primarily to persons under 21

years of age," § 5-20-40(B)(3), and in Virginia, it is illegal to

sell alcohol to anyone under twenty-one. Va. Code Ann.

§ 4.1-302.

We have recognized that advertisements for age-restricted

— but otherwise lawful — products concern lawful activity

where the audience comprises both underage and of-age

members. See, e.g., West Virginia Ass’n of Club Owners and

Fraternal Serv. Inc. v. Musgrave, 553 F.3d 292, 302 (4th Cir.

2009) (video lottery ads in retail stores); Anheuser-Busch, Inc.

v. Schmoke, 63 F.3d 1305, 1313 (4th Cir. 1995) (Anheuser-

Busch I) (alcohol advertisements in public), vacated on other

grounds, Anheuser-Busch, Inc. v. Schmoke, 517 U.S. 1206

(1996). On its face, § 5-20-40(B)(3) does not restrict commer-

cial speech solely distributed to underage students; rather, it

applies to commercial speech that, though primarily intended

for underage students, also reaches of-age readers. Therefore,

the commercial speech regulated by § 5-20-40(B)(3) concerns

lawful activity.

Further, because this is a facial, pre-enforcement challenge,

"[w]e assume that the speech is not misleading because . . .

[the Board] has not provided evidence that the speech is actu-

8 EDUCATIONAL MEDIA CO. v. SWECKER

ally misleading, and there is no evidence that the advertising

restrictions were enacted to prevent the dissemination of mis-

leading information." Musgrave, 553 F.3d at 302. The district

court, therefore, properly found that § 5-20-40(B)(3) restricts

commercial speech protected by the First Amendment.

B.

"Next, we ask whether the asserted governmental interest

is substantial." Central Hudson, 447 U.S. at 566. The Board

contends that it has a substantial interest in combating the

serious problem of underage drinking and abusive drinking by

college students. The college newspapers do not dispute that

this interest is substantial. See Appellee’s Br. 14. Therefore,

like the district court, we find the Board’s interest to be sub-

stantial.

C.

We next consider whether the advertising ban "directly and

materially" advances the government’s substantial interest.

Musgrave, 553 F.3d at 303 (internal citation and quotation

omitted). To determine whether this prong is satisfied "we

focus on the relationship between the State’s interests and the

advertising ban." Central Hudson, 447 U.S. at 569. This rela-

tionship, or link, need not be proven by empirical evidence;

rather, it may be supported by "history, consensus, and simple

common sense." Lorillard Tobacco Co. v. Reilly, 533 U.S.

525, 555 (2001) (quoting Florida Bar v. Went For It, Inc., 515

U.S. 618, 628 (1995)). However, the link is insufficient if it

is irrational, contrary to specific data, or rooted in speculation

or conjecture. Musgrave, 553 F.3d at 304.

The Board asserts that history, consensus, and common

sense support the link between advertising bans in college

newspapers and a decrease in demand for alcohol among col-

lege students. The Board cites judicial decisions recognizing

this general link and argues that, here, this link is extraordi-

EDUCATIONAL MEDIA CO. v. SWECKER 9

narily strong because college newspapers, a targeted form of

media bearing the name of the college, attract more attention

among college students than other forms of mass media. The

Board also notes that, given the amount of money alcohol

vendors spend on advertisement, it is illogical to think that

alcohol ads do not increase demand. The college newspapers

counter by arguing that: (1) there is no evidence that alcohol

advertising bans in college publications decrease demand

among college students and (2) a ban on alcohol advertising

in college publications is ineffective because college students

see ads for alcohol in various other forms of media.4 The dis-

trict court agreed with the college newspapers.

We, however, find the link between § 5-20-40(B)(3) and

decreasing demand for alcohol by college students to be

amply supported by the record, and the district court erred by

finding otherwise. Though the correlation between advertising

and demand alone is insufficient to justify advertising bans in

every situation, Musgrave, 553 F.3d at 304, here it is strength-

ened because "college student publications" primarily target

college students and play an inimitable role on campus. See

J.A. 259 ("The college publication is where [college students

are] looking to find out what’s going on in their college com-

munity, what’s happening."). This link is also supported by

the fact that alcohol vendors want to advertise in college stu-

dent publications. It is counterintuitive for alcohol vendors to

spend their money on advertisements in newspapers with rela-

tively limited circulation, directed primarily at college stu-

dents, if they believed that these ads would not increase

demand by college students. The college newspapers fail to

provide evidence to specifically contradict this link or to rec-

4

The college newspapers also argue that, even if there is a link between

advertising bans and demand, § 5-20-40(B)(3)’s exemptions undermine its

effectiveness. This argument fails to take into account the actual scope of

§ 5-20-40(B)(3). Even with its exemptions, it proscribes without exception

all alcohol ads for non-restaurants. Therefore, in light of the full scope of

§ 5-20-40(B)(3), its limited exception for restaurants does not render it

futile.

10 EDUCATIONAL MEDIA CO. v. SWECKER

ognize the distinction between ads in mass media and those

in targeted local media.

The district court, therefore, erred by finding that this link

did not satisfy Central Hudson’s third prong. Even though

this link is established, we must still decide whether § 5-20-

40(B)(3) satisfies Central Hudson’s fourth prong.

D.

Under Central Hudson’s fourth prong, commercial speech

restrictions must be "narrowly drawn." Central Hudson, 447

U.S. at 565. The restrictions do not need to be the least

restrictive means possible, but they do need to have a "reason-

able fit with the government’s interest — a fit ‘that represents

not necessarily the single best disposition but one whose

scope is in proportion to the interest served.’" Musgrave, 553

F.3d at 305 (quoting Greater New Orleans Broad., 527 U.S.

at 188). Further, the state "must consider alternatives to regu-

lating speech to achieve its ends." Musgrave, 553 F.3d at 305.

Where a state has a comprehensive scheme to serve its inter-

est, limitations on commercial speech should "complement

non-speech alternatives," not serve as substitutes for them.

See id. at 306.

Here, § 5-20-40(B)(3) is narrowly tailored to serve the

Board’s interest of establishing a comprehensive scheme

attacking the problem of underage and dangerous drinking by

college students. Section 5-20-40(B)(3) is not a complete ban

on alcohol advertising in college newspapers. First, it only

prohibits certain types of alcohol advertisements. In fact, it

allows restaurants to inform readers about the presence and

type of alcohol they serve. Second, the restriction only applies

to "college student publications" — campus publications tar-

geted at students under twenty-one. It does not, on its face,

affect all possible student publications on campus. Therefore,

§ 5-20-40(B)(3) is sufficiently narrow.

EDUCATIONAL MEDIA CO. v. SWECKER 11

Further, the Board not only considered non-speech related

mechanisms to serve its interest, it actually implemented them

through education and enforcement programs. Section 5-20-

40(B)(3) complements these non-speech alternatives. Within

the Board’s multi-pronged attack on underage and abusive

drinking, § 5-20-40(B)(3) constitutes an additional prevention

mechanism. Without it, either education or enforcement

efforts would have to be increased, and given the Board’s lim-

ited resources, § 5-20-40(B)(3) is a cost-effective prevention

method that properly complements their non-speech related

efforts.

The college newspapers argue that § 5-20-40(B)(3) is not

the least restrictive means to serve the Board’s interest

because there are other, more effective ways to fight underage

and abusive drinking without restricting speech. However,

§ 5-20-40(B)(3) does "not necessarily [need to be] the single

best disposition[,] but one whose scope is in proportion to the

interest served." Musgrave, 553 F.3d at 305 (quoting Greater

New Orleans Broad., 527 U.S. at 188). The Board has shown

that § 5-20-40(B)(3) is an integral, reasonable fit to serve its

interests. The possible existence of more effective methods

does not undermine § 5-20-40(B)(3), especially in light of its

role in a comprehensive scheme to fight underage and abusive

drinking. The district court, therefore, erred by finding § 5-20-

40(B)(3) to be overly broad.

E.

On its face, the Board’s ban on alcoholic advertisements in

college student publications passes muster under Central

Hudson. The district court, therefore, erred in finding other-

wise.

III.

For the foregoing reasons, we reverse the district court’s

order granting summary judgment, vacate its permanent

12 EDUCATIONAL MEDIA CO. v. SWECKER

injunction, and remand for proceedings consistent with this

opinion.

REVERSED AND REMANDED

MOON, District Judge, dissenting:

I respectfully dissent.

Preliminarily, I observe that the regulation, properly con-

strued, does not apply to these newspapers. "[T]he parties

agree that a majority of the readership of the college newspa-

pers is over the age of twenty-one," ante at n. 1, and the

undisputed statistical evidence in the record supports that

agreement. More than half of the students at these universities

are over the age of twenty-one, as of course are most faculty

and staff. J.A. 464, 470-71, 477, 480. Given that a majority

of the readership is over the age of twenty-one, these college

newspapers are not "distributed or intended to be distributed

primarily to persons under 21 years of age," as required to be

subject to the strictures of 3 Va. Admin. Code § 5-20-

40(B)(3). This case could be resolved on that ground without

reaching the broader constitutional question. See Ashwander

v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,

concurring) ("The Court will not pass upon a constitutional

question although properly presented by the record, if there is

also present some other ground upon which the case may be

disposed of."); see also Thompson v. Greene, 427 F.3d 263,

267 (4th Cir. 2005) (quoting Ashwander). However, both the

district court and the majority reach and address the constitu-

tional question, and so I do as well.1

1

The Board argued before the district court that "the regulation ‘is no

longer at issue’" because "the ABC Department has not enforced [the reg-

ulation] since the filing of the instant suit" and "the ABC Department

intends to implement a committee to examine the advertising regulations."

J.A. 82. The district court observed that "[t]he regulation . . . remains pro-

mulgated in the Virginia Administrative Code," and determined that "vol-

EDUCATIONAL MEDIA CO. v. SWECKER 13

On the merits of the constitutional issue, I think we should

affirm. To satisfy the requirement that the regulation "directly

advances the governmental interest asserted," Central Hudson

Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447

U.S. 557, 566 (1980), the government must demonstrate that

the challenged law "alleviate[s]" the cited harms "to a mate-

rial degree," Florida Bar v. Went For It, Inc., 515 U.S. 618,

624 (1995) (citation omitted); see also Greater New Orleans

Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999);

Pitt News v. Pappert, 379 F.3d 96, 107 (3rd Cir. 2004). "This

burden is not satisfied by mere speculation or conjecture."

Edenfield v. Fane, 507 U.S. 761, 770-71 (1993); Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001); Pitt News,

379 F.3d at 107. It is likewise not enough if a law "provides

only ineffective or remote support for the government’s pur-

poses," Edenfield, 507 U.S. at 770 (quoting Central Hudson,

447 U.S. at 564), or if there is "little chance" that the law will

advance the state’s goal, Lorillard, 533 U.S. at 566. See also

Pitt News, 379 F.3d at 107. Meeting this burden "is critical;

otherwise, ‘a State could with ease restrict commercial speech

in the service of other objectives that could not themselves

untary cessation of enforcement, even with the intent to reconsider the

merits of the regulation," did not render the regulation moot, given that the

Board "could elect to enforce [the regulation] at any time" and "any inten-

tion to repeal the regulation is, at best, speculative." Id. As the majority

notes, "regardless of whether § 5-20-40-(B)(3) applies to these college

newspapers, they have a sufficient credible fear of prosecution under this

regulation." Ante at n. 1. Nonetheless, it is my opinion that the better

approach would be to avoid the constitutional question, providing relief

"‘no more burdensome to the defendant than necessary to provide com-

plete relief to the plaintiffs.’" Virginia Soc’y for Human Life, Inc. v. FEC,

263 F.3d 379, 393 (4th Cir. 2001) (quoting Califano v. Yamasaki, 442

U.S. 682, 702 (1979)). Were we to hold that the regulation does not apply

to these newspapers, the state would be barred from further attempts to

enforce the regulation against them. See, e.g., State Water Control Bd. v.

Smithfield Foods, Inc., 261 Va. 209, 214-15 (2001) (final judgment on the

merits of a claim in federal court precludes the parties from further litiga-

tion on that claim in state court).

14 EDUCATIONAL MEDIA CO. v. SWECKER

justify a burden on commercial expression.’" Rubin v. Coors

Brewing Co., 514 U.S. 476, 487 (1995)(quoting Edenfield,

507 U.S. at 771); see also Pitt News, 379 F.3d at 107. In sum,

the burden is on the government, and the record here supports

the district court’s finding that the government failed to carry

its burden.2

I am persuaded by an opinion from the Third Circuit deal-

ing with similar facts. Pitt News v. Pappert (written by then-

Judge Alito) invalidated a Pennsylvania statute that banned

"advertisers from paying for the dissemination of ‘alcoholic

beverage advertising’ by communications media affiliated

with a university, college, or other ‘educational institution.’"3

379 F.3d at 101. Pitt News ruled that the Pennsylvania statute

"founder[ed] on the third and fourth prongs of the Central

Hudson test."4 Id. at 107. Finding that the third prong of the

Central Hudson test had not been met, the Third Circuit

observed that the Commonwealth of Pennsylvania had not

carried its burden of showing that the statute "had the effect

of greatly reducing the quantity of alcoholic beverage ads

viewed by underage and abusive drinkers on the Pitt campus.

. . ." Id. The court found that the Pennsylvania statute applied

2

The district court found the government’s evidence speculative. J.A.

92-96. For example, the district court observed that the Board’s expert "of-

fers no rationale or evidence, beyond conjecture, to support his claim as

to the singularity of a college publication. . . . [H]is insight ignores the

common sense reality that college students now live in a multimedia envi-

ronment . . . , all of which display uncensored alcoholic advertisements."

J.A. 95-96.

3

To be sure, the statute at issue in Pitt News did not contain the exemp-

tions allowed by § 5-20-40(B)(3); however, as I explain infra, those

exemptions constitute inconsistencies that, under a Central Hudson analy-

sis, further undermine the legitimacy of § 5-20-40(B)(3).

4

Pitt News also found the Pennsylvania statute "presumptively unconsti-

tutional because it targets a narrow segment of the media. . . ." 379 F.3d

at 105. Having broached the constitutional issue, I would embrace also the

alternative argument that the regulation unjustifiably targets a specific seg-

ment of the media.

EDUCATIONAL MEDIA CO. v. SWECKER 15

only to advertising in a very narrow sector of the

media (i.e., media associated with educational insti-

tutions), and the Commonwealth has not pointed to

any evidence that eliminating ads in this narrow sec-

tor will do any good. Even if Pitt students do not see

alcoholic beverage ads in The Pitt News, they will

still be exposed to a torrent of beer ads on television

and the radio, and they will still see alcoholic bever-

age ads in other publications, including the other free

weekly Pittsburgh papers that are displayed on cam-

pus together with The Pitt News. The suggestion that

the elimination of alcoholic beverage ads from The

Pitt News and other publications connected with the

University will slacken the demand for alcohol by

Pitt students is counterintuitive and unsupported by

any evidence that the Commonwealth has called to

our attention.

Id.

Here, as in Pitt News, "the Commonwealth relies on noth-

ing more than ‘speculation’ and ‘conjecture.’" Id. at 107-08.

Under the third prong of a Central Hudson analysis, I dis-

agree with the finding that "the link between § 5-20-40(B)(3)

and decreasing demand for alcohol by college students [is]

amply supported by the record." Ante at 9. The evidence in

the record indicates such a link is speculative, at best.5 Nor am

5

The newspapers’ expert concluded that "no evidence exists to support

a substantial or material effect of a ban of alcohol advertising in college

newspapers. . . . Brand advertising only affects brand sales (or vice versa),

and market-wide demand for alcohol is not stimulated by advertising."

J.A. 486. And, although the Board’s expert reached the opposite conclu-

sion, an examination of his published articles and his deposition testimony

reveals that there is no evidence that the regulation directly and materially

advances the goal of diminishing underage or abusive drinking by college

students. Indeed, the Board’s expert has published the statement that

"[t]here is . . . very little empirical evidence that alcohol advertising has

any effect on actual alcohol consumption." J.A. 310-11, 326. The Board’s

16 EDUCATIONAL MEDIA CO. v. SWECKER

I persuaded by "the fact that alcohol vendors want to advertise

in college student publications" and that alcohol vendors

would not "spend their money on advertisements in" college

student publications "if they believed that these ads would not

increase demand by college students." Ante at 9. The Board’s

justification for the regulation is not to reduce general "de-

mand by college students," a significant number of whom are

of legal age to imbibe, but to reduce "underage and

abusive drinking among college students." Appellants’ Br. at

2 (emphasis added). 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.

As for the fourth prong under Central Hudson, I acknowl-

edge that § 5-20-40(B)(3) contains exemptions that permit

restaurants to advertise "the presence and type of alcohol they

serve." Ante at 10. Indeed, the poor "fit" between the regula-

tion and the Commonwealth’s asserted goal is belied by what

expert has also acknowledged that a ban on advertising in one medium

generally results in greater advertising saturation in other media or forms

of marketing. J.A. 343, 350.

Moreover, as the district court recognized, the regulation has been on

the books, altered over time to reflect changes in the legal drinking age,

since the repeal of Prohibition. J.A. 84, 93. Yet, as the Commonwealth

implicitly concedes, underage and abusive drinking by college students

has not diminished since the enactment of this regulation; rather, the evi-

dence demonstrates that the problem has grown and exacerbated over

time, despite the decades-old restriction. J.A. 93. This suggests to me that

the regulation does not materially advance the Commonwealth’s purported

interest in curbing underage or excessive drinking. J.A. 93-94.

EDUCATIONAL MEDIA CO. v. SWECKER 17

§ 5-20-40(B)(3) permits. Lorillard, 533 U.S. at 555; Greater

New Orleans, 527 U.S. at 188; West Virginia Ass’n of Club

Owners and Fraternal Serv. Inc. v. Musgrave, 553 F.3d 292,

305 (4th Cir. 2009); Pitt News, 379 F.3d at 108. Although the

regulation prohibits advertising of prices, brands of alcohol,

and names of specialty drinks, it allows promotions of "beer,"

"wine," and "mixed beverages" to appear in the very same

newspapers that are allegedly "targeted at students under

twenty-one." Ante at 10. It is inconsistent to maintain that a

regulation that permits advertisements for "beer night" or

"mixed drink night" "in reference to a dining establishment"

forms a reasonable fit with the goal of curbing underage or

excessive drinking merely because it forbids advertisements

for keg delivery, "mojito night," or the "Blacksburg Wine Festi-

val."6 J.A. 73, 74. Indeed, the Supreme Court has pointed to

this sort of internal inconsistency in striking down advertising

regulations under the third prong of a Central Hudson analy-

sis. See Greater New Orleans, 527 U.S. at 190 (observing that

a ban on broadcasting lottery information was "so pierced by

exemptions and inconsistencies that the Government cannot

hope to exonerate it."); Coors Brewing, 514 U.S. at 490 (the

government’s "anecdotal evidence and educated guesses" do

not "overcome the irrationality of the regulatory scheme,"

which prohibited alcohol content information in labeling but

not in advertising). An attempt to rationalize these inconsis-

6

Nor does the regulation form a reasonable fit to its goal insofar as it

prohibits advertisements for national brands, considering the heavy pro-

motion of these products in other media, including print media, available

to college students regardless of whether they are of legal age to drink.

According to the Board, however, "the alcohol industry" restricts "adver-

tisement of alcoholic beverages to media where at least 70% of the audi-

ence is reasonably expected to be over the age of 21." Appellants’ Reply

Br. at 10; J.A. 359. The Board thus contends that its regulation "is not

about brand advertising," but "is about bars and grocery stores, drink spe-

cials and discounts, intended to attract purchasers - not to a particular

brand, but to a particular outlet or venue, or even just off campus - to

locations where alcohol will be sold." Id. (emphasis added). Yet the

exemptions in the regulation permit a "dining establishment," i.e., a "par-

ticular outlet or venue," to promote "beer night" or "mixed drink night."

18 EDUCATIONAL MEDIA CO. v. SWECKER

tencies, defending them on the ground that the regulation "is

not a complete ban on alcohol advertising in college newspa-

pers," ante at 10 (emphasis added), may state an accurate

observation; however, the statement is wholly unresponsive to

the requirements of Central Hudson. It fails to disguise the

fact that there is no empirical support for banning one type of

advertisement but not the other.

I disagree with the finding that § 5-20-40(B)(3) is "suffi-

ciently narrow" because it applies to "campus publications

targeted at students under twenty-one" and "does not, on its

face, affect all possible student publications on campus." Ante

at 10. While the latter observation may be true, the former is

not. There is no evidence that these newspapers are "targeted

at students under twenty-one."7 The record reveals that the

majority of the readership of these newspapers is of legal age

to drink. Accordingly, under the fourth step of the Central

7

As I have already observed, the parties agree that a majority of the

readership of the college newspapers is over the age of twenty-one, and

the undisputed statistical evidence in the record supports that agreement.

J.A. 464, 470-71, 477, 480. A majority of the students at these universities

are over the age of twenty-one, as of course are most faculty and staff. Id.

Appellants argue that "[t]he intended audiences of the UVA and Va.

Tech student newspapers include a relatively large population of graduate

and professional students," but that, "[w]here the student population of an

institution is comprised only of undergraduates, it is likely that its student

newspaper’s intended audience is comprised primarily of undergraduate

students" who are under age twenty-one. Appellants’ Br. at 23. Although

in most circumstances a facial challenge to the constitutionality of a law

can succeed only by establishing that there is no set of circumstances

under which the law would be valid, i.e., that the law is unconstitutional

in all of its applications, Washington State Grange v. Washington State

Republican Party, 552 U.S. 442, 449-51 (2008), facial changes "in the

First Amendment context" may succeed when a "substantial number" of

the law’s applications are unconstitutional, id. at 450, n. 6 (citations omit-

ted). Additionally, "[i]n determining whether a law is facially invalid, we

must be careful not to go beyond the statute’s facial requirements and

speculate about ‘hypothetical’ or ‘imaginary’ cases." Id. at 449-50 (cita-

tion omitted).

EDUCATIONAL MEDIA CO. v. SWECKER 19

Hudson test, the regulation here, like the Pennsylvania statute

in Pitt News, is not "a means narrowly tailored to achieve the

desired objective," Lorillard, 533 U.S. at 555 (quotations

omitted), given that it "is both severely over- and under-

inclusive," Pitt News, 379 F.3d at 108 (observing that "more

than 67% of Pitt students and more than 75% of the total Uni-

versity population is over the legal drinking age").

True, the regulation need not be "the single best disposi-

tion," but only "one whose scope is in proportion to the inter-

est served." Musgrave, 553 F.3d at 305. However, a

commercial speech restriction must be "‘a necessary as

opposed to merely convenient means of achieving’" the Com-

monwealth’s interests, and "the costs and benefits associated

with" the restriction must be "‘carefully calculated.’" Mus-

grave, 553 F.3d at 305 (citations omitted; emphasis added).

Here, the scope of § 5-20-40(B)(3), and its impact on pro-

tected commercial speech, are far out of proportion to the

interest served, and the record indicates that "the Common-

wealth can seek to combat underage and abusive drinking by

other means that are far more direct and that do not affect the

First Amendment."8 Pitt News, 379 F.3d at 108. In short, the

8

For example, the Board’s own expert has acknowledged the following

more direct means: increased taxation on alcohol, which has been empiri-

cally verified and quantified as a means to combat underage and binge

drinking ("[i]ncreased taxation is more effective than advertising bans")

(J.A. 21, 319); and counter-advertising to correct students’ perceptions

about their peers’ drinking habits and provide facts as to the dangers of

underage and excessive drinking ("increased counteradvertising, rather

than new advertising bans, appears to be the better choice for public pol-

icy") (J.A. 351). See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,

507 (1996) (plurality opinion of Stevens, J., joined by Kennedy, Souter,

and Ginsburg) ("As the State’s own expert conceded, higher prices can be

maintained either by direct regulation or by increased taxation."); id. at

530 (O’Connor, J., concurring, joined by Chief Justice Rehnquist and Jus-

tices Breyer and Souter) ("Rhode Island’s own expert conceded that the

objective of lowering consumption of alcohol by banning price advertising

could be accomplished by establishing minimum prices and/or by increas-

ing sales taxes on alcoholic beverages.") (internal quotation marks and

20 EDUCATIONAL MEDIA CO. v. SWECKER

advertising ban here offers "only ineffective or remote sup-

port," not a direct means, to combat underage and abusive

drinking. Central Hudson, 447 U.S. at 564; Edenfield, 507

U.S. at 770; Pitt News, 379 F.3d at 107.

In my view, the regulation cannot withstand constitutional

scrutiny under Central Hudson. It is objectionable that the

Commonwealth’s rationale for the regulation applies only to

underage and abusive drinking, while the regulation itself

applies much more broadly. In free speech cases, it is danger-

ous and unwise to sustain broad regulations for narrow rea-

sons. Central Hudson confirms this reasoning, recognizing

that a regulation restricting commercial speech must be "‘nar-

rowly drawn.’" 447 U.S. at 565 (citation omitted). Section 5-

20-40(B)(3) fails to "directly advance[ ] the governmental

interest asserted" and is "more extensive than is necessary to

serve that interest." Central Hudson, 447 U.S. at 566. I would

therefore affirm the judgment below.

citation omitted). Indeed, the Board uses the following direct means: pub-

lishing "educational pamphlets on the dangers of underage and binge

drinking on college campuses, targeted at both underage students and their

parents"; enforcing "its regulations by carefully allocating its limited num-

ber of officers to target ‘big events that are likely to gather college stu-

dents’"; and giving "grants to colleges and college communities to

supplement these targeted efforts." Ante at 4.