describing, in a case not involving the prison context, that the "difference between a facial challenge and an as-applied challenge lies in the scope of the constitutional inquiry," with the first focusing on the policy "without regard" to its impact on the plaintiff, and the second focusing on how such policy is applied to a specific person or entity
How later courts described this case
- describing, in a case not involving the prison context, that the "difference between a facial challenge and an as-applied challenge lies in the scope of the constitutional inquiry," with the first focusing on the policy "without regard" to its impact on the plaintiff, and the second focusing on how such policy is applied to a specific person or entity
- "To be sure, the question of whether Sorrell 's 'heightened scrutiny' is, in fact, strict scrutiny remains unanswered."
- “[T]he state must justify the challenged regulation with regard to its impact on the plaintiffs.”
- “However, like the Court in Sorrell, we need not determine whether strict scrutiny is applicable here, given that, as detailed below, we too hold that the challenged regulation fails under intermediate scrutiny set forth in Central Hudson.”
Written by the judges who cited it.
The opinion
SHEDD, Circuit Judge,
dissenting:
When this case was first before us on the college newspapers’ facial challenge under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980), we explained why 3 Va. Admin. Code § 5-20-40 (A)(2) was a reasonable fit to Virginia’s interest in combating underage and abusive drinking on college campuses, see Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 590-91 (4th Cir.2010). The record, and my view of the regulation, have not changed.
Virginia has devised a comprehensive, multifaceted approach to combat what is acknowledged to be a serious problem-underage and abusive drinking, as well as the associated problems of increased fatal and nonfatal motor vehicle crashes, vandalism, suicide attempts, homicide, non-motor vehicle-related injuries, sexual violence, and unprotected sexual encounters. See J.A. 325. For example, officials at the University of Virginia have undertaken alcohol-education efforts aimed at first-year students, underage students, student athletes, fraternity and sorority members, and the University community in general. See J.A. 214-18, 239-44. Similar efforts have been made at Virginia Tech. See J.A. 115— 212.
This comprehensive plan adopted by Virginia only minimally impacts commercial speech by attempting to limit advertising aimed at a targeted market which includes a substantial percentage of readers for whom use of the product is illegal. Virginia’s approach does not prohibit all advertising for alcohol which will reach this audience; it is a minor limitation on such advertising in college newspapers as *303 part of a comprehensive plan to address a very serious problem.
Therefore, I believe that § 5-20-40(A)(2) is a reasonable fit to the state’s goal of reducing underage and abusive drinking. For these reasons, I respectfully dissent.