PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2183
EDUCATIONAL MEDIA COMPANY AT VIRGINIA TECH, INCORPORATED;
CAVALIER DAILY, INCORPORATED, The Cavalier Daily,
Incorporated,
Plaintiffs - Appellants,
v.
J. NEAL INSLEY, Commissioner, Virginia Alcoholic Beverage
Control Commission; SANDRA C. CANADA, 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 Virginia Department of Alcoholic
Beverage Control; BRYAN M. RHODE, Commissioner, Virginia
Alcoholic Beverage Control Commission,
Defendants – Appellees.
------------------------------
WASHINGTON LEGAL FOUNDATION; STUDENT PRESS LAW CENTER;
COLLEGE NEWSPAPER BUSINESS AND ADVERTISING MANAGERS; THOMAS
JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION; THE
MEDIA INSTITUTE,
Amici Supporting Appellants.
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: May 14, 2013 Decided: September 25, 2013
Before KING, SHEDD, and THACKER, Circuit Judges.
Reversed by published opinion. Judge Thacker wrote the majority
opinion, in which Judge King joined. Judge Shedd wrote a
dissenting opinion.
ARGUED: Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Appellants.
Catherine Crooks Hill, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Frank
M. Feibelman, ACLU OF VIRGINIA, Richmond, Virginia, for
Appellants. Kenneth T. Cuccinelli, II, Attorney General of
Virginia, E. Duncan Getchell, Solicitor General of Virginia,
Wesley G. Russell, Jr., Deputy Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Cory L. Andrews, WASHINGTON LEGAL FOUNDATION, Washington, D.C.,
for Amicus Washington Legal Foundation. Katherine A. Fallow,
Carrie F. Apfel, Joshua N. Friedman, JENNER & BLOCK LLP,
Washington, D.C.; Frank D. LoMonte, Adam Goldstein, Adam E.
Schulman, STUDENT PRESS LAW CENTER, Arlington, Virginia, for
Amici Student Press Law Center and College Newspaper Business
and Advertising Managers. J. Joshua Wheeler, Clayton N. Hansen,
THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE
EXPRESSION, Charlottesville, Virginia; Bruce D. Brown, Thomas E.
Hogan, BAKER & HOSTETLER, Washington, D.C., for Amici The Thomas
Jefferson Center for the Protection of Free Expression and The
Media Institute.
2
THACKER, Circuit Judge:
The Virginia Alcoholic Beverage Control Board (the
“ABC”) prohibits college student newspapers from printing
alcohol advertisements. Appellants Educational Media and The
Cavalier Daily (hereinafter “Appellants” or the “College
Newspapers”) are non-profit corporations that own student
newspapers at Virginia Polytechnic Institute and State
University (“Virginia Tech”) and the University of Virginia
(“UVA”), respectively. In this action, the College Newspapers
challenge the ABC ban on alcohol advertisements as violative of
the First Amendment, as applied to them.
The district court granted summary judgment in favor
of the ABC, concluding that the challenged regulation is a
constitutionally appropriate restriction of commercial speech
given Virginia’s substantial interest in combatting underage and
abusive drinking on college campuses. However, in this as-
applied challenge, because the advertising ban is not
appropriately tailored to Virginia’s stated aim, we reverse the
judgment of the district court.
I.
Virginia precludes college student newspapers from
printing alcohol advertisements. See 3 Va. Admin. Code § 5-20-
40(A)(2)(2010) (the “challenged regulation”). The challenged
regulation provides:
3
Advertisements of alcoholic beverages are not allowed
in college student publications unless in reference to
a dining establishment, except as provided below. A
“college student publication” is defined as any
college or university publication that is prepared,
edited or published primarily by students at such
institution, is sanctioned as a curricular or extra-
curricular activity by such institution and which is
distributed or intended to be distributed primarily to
persons under 21 years of age.
3 Va. Admin. Code § 5-20-40(A)(2). 1
In 2006, the College Newspapers brought suit in the
Eastern District of Virginia, contending that the challenged
regulation was violative of the First Amendment. The College
Newspapers made three distinct arguments. First, they argued
that the challenged regulation impermissibly discriminates
against a narrow segment of the media -- college student
newspapers -- thus subjecting the regulation to the exacting
strict scrutiny standard, which, they argued, it cannot
withstand. Second, they argued that, even if strict scrutiny is
inapplicable, the challenged regulation fails, on its face, to
satisfy the Supreme Court’s Central Hudson test, which subjects
1
In 2008, at the time of the initial district court
disposition in this case, the relevant regulatory language was
codified at 3 Va. Admin. Code § 5-20-40(B)(3) (2008). This
section was amended in 2010. The only substantive difference
between the version of the regulation in place in 2008 and the
version in place at present is that the current version of the
regulation does not enumerate the phrases permissible for use in
an alcohol advertisement by a “dining establishment,” while the
former version did. This difference is immaterial to our
resolution of the present appeal.
4
non-misleading commercial speech to intermediate scrutiny. See
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447
U.S. 557 (1980). Finally, the College Newspapers argued that,
even if the challenged regulation could withstand a facial
challenge under Central Hudson, the regulation fails Central
Hudson as-applied.
A.
The ABC asserts that the purpose of the challenged
regulation is to combat underage and abusive college drinking.
During discovery, each party proffered expert testimony on the
question of whether the challenged regulation was effective in
this regard. Specifically, the ABC offered a declaration of Dr.
Henry Saffer, an economics professor at Kean University in New
Jersey. Dr. Saffer testified that, while the vast majority of
studies found that alcohol advertising bans do not, in fact,
reduce the overall market demand for alcohol, those studies are
inapplicable here. Notably, Dr. Saffer contends that, while
most scholars assume that a prohibition on alcohol advertising
in one forum simply pushes alcohol advertising to other forums,
according to him, this assumption only holds true where a
reasonable substitute for the regulated forum exists. Dr.
Saffer testified that this assumption does not hold true in the
context of college student newspapers, because “[a] college
newspaper is a very targeted, specific kind of media,” and there
5
is “nothing else that can replace that kind of targeted media
that’s specifically oriented towards and reaches college
students.” J.A. 313. 2 According to Dr. Saffer’s reasoning, in
the unique instance of college newspapers, alcohol advertising
bans actually do have a significant effect on market demand
despite the vast majority of studies that show otherwise outside
of this particular context.
In contrast, the College Newspapers offered the
testimony of Dr. Jon P. Nelson, an economics professor at
Pennsylvania State University. Based on his research, Dr.
Nelson testified that “[a]dvertising bans, partial or
comprehensive, do not reduce the demand for alcohol.” J.A. 484.
Rather, he explains, “[i]n a ‘mature market,’ such as alcohol
beverages, the primary effect of advertising is to create and
maintain brand loyalty[,]” as opposed to expanding overall
market demand. Id. He also notes that college students are
continually exposed to alcohol advertisements in a variety of
forums -- including television, radio, and the internet -- which
“will totally offset any possible temperance effect of the ABC
regulation.” Id. at 487.
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
6
In a declaration filed in response to Dr. Saffer’s
testimony, Dr. Nelson noted that Dr. Saffer did not present any
specific evidence in support of his proposition that targeted
advertising bans in college student publications actually
achieve the desired goal, that is, reduced drinking. Moreover,
Dr. Saffer conceded that, in addition to the lack of empirical
support for selective bans on alcohol advertising in college
student publications, other methods of combatting alcohol
consumption on college campuses have been proven more effective.
Specifically, as the district court noted, “Dr. Saffer also
admits that increased taxation has been shown to reduce underage
consumption in a more effective manner than advertising bans and
that counter-advertising has effectively reduced levels of
alcohol consumption.” J.A. 586-87.
The College Newspapers also established, without any
counter-argument from the ABC, that a majority of their readers
are over the age of 21. Specifically, the Collegiate Times --
the Virginia Tech student newspaper owned by Appellant
Educational Media -- has a daily readership of roughly 14,000
readers. According to a 2004 survey, persons age 21 or over
constituted roughly 60% of the Collegiate Times’ total
readership and about 59% of the Collegiate Times’ total student
readership. Similarly, the Cavalier Daily has a daily
readership of about 10,000 readers. As of January 1, 2007,
7
persons age 21 or over comprised approximately 64% of UVA’s
total student population.
B.
In 2008, following the close of discovery, the
district court granted the College Newspapers’ motion for
summary judgment, declaring that the challenged regulation was
facially unconstitutional under Central Hudson. Having
determined that the regulation failed Central Hudson on its
face, the district court declined to reach the College
Newspapers’ remaining arguments regarding strict scrutiny or an
as-applied challenge.
On appeal, a panel of this court reversed, holding
that, on its face, the ban does not violate the First Amendment.
See Educ. Media Co., et. al. v. Swecker, 602 F.3d 583 (4th Cir.
2010). Because the underlying district court opinion was
premised solely on the College Newspapers’ facial challenge,
Swecker was similarly confined to that aspect of the case. See
Swecker, 602 F.3d at 587 n.2. (“The district court did not reach
the college newspapers’ alternative arguments . . . . Though
the college newspapers reiterate these alternative arguments on
appeal, we decline to address them in the first instance.”).
Accordingly, the panel remanded the case to the district court
for consideration of the two remaining challenges: (1) the
College Newspapers’ argument that the challenged regulation is
8
subject to, and fails, strict scrutiny and (2) the College
Newspapers’ argument that, as-applied to them, the challenged
regulation fails Central Hudson.
The parties then filed cross motions for summary
judgment without supplementing the record. On September 7,
2012, the district court granted the ABC’s motion and,
simultaneously, denied the College Newspapers’ motion. In so
doing, the district court first rejected the College Newspapers’
contention that strict scrutiny applied, opting instead to
analyze the regulation under Central Hudson. The district court
then held that, in light of our opinion in Swecker, it was
constrained to conclude that the challenged regulation did not
violate Central Hudson as applied to the College Newspapers.
Thus, the district court granted summary judgment in favor of
the ABC on all remaining claims. The College Newspapers timely
noted this appeal.
II.
We review a district court order granting summary
judgment de novo, viewing the evidence in the light most
favorable to the non-moving party. Lansdowne on the Potomac
Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d
187, 195 (4th Cir. 2013).
In reviewing a challenge to a restriction on
commercial speech, “[i]t is well established that the party
9
seeking to uphold a restriction on commercial speech carries the
burden of justifying it.” Edenfield v. Fane, 507 U.S. 761, 770
(1993)(internal quotation marks omitted).
III.
A.
While commercial speech is protected by the First
Amendment, there is a “commonsense distinction” between
commercial speech and other varieties of speech. Cent. Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S.
557, 562 (1980). Thus, “[t]he Constitution . . . accords a
lesser protection to commercial speech than to other
constitutionally guaranteed expression.” Id. at 562-63.
Accordingly, under Central Hudson, a restriction on commercial
speech must withstand “intermediate scrutiny” in order to
survive a First Amendment challenge. Id. at 573 (Blackmun, J.
concurring); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623
(1995).
The parties agree that the challenged regulation
impacts only commercial speech. However, the College Newspapers
argue that, despite this, Central Hudson “intermediate scrutiny”
does not apply. Instead, they argue that the challenged
regulation is subject to strict scrutiny because it allegedly
engages in both content-based and speaker-based discrimination
by singling out a narrow segment of the media, college student
10
publications, and subjecting that segment to heightened
regulation.
In so arguing, the College Newspapers primarily rely
on Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011). In
Sorrell, the Supreme Court invalidated a Vermont law that
prevented pharmacies from revealing “prescriber-identifying
information” 3 for marketing purposes. Vermont argued that this
law satisfied Central Hudson as it was appropriately tailored to
the important governmental aims of ensuring medical privacy and
reducing the price of prescription drugs.
The Supreme Court invalidated the ban, concluding
that, by only prohibiting the disclosure of prescriber-
identifying information for marketing purposes, Vermont had
engaged in both content-based and speaker-based discrimination.
Accordingly, the Court concluded that the Vermont law needed to
withstand “heightened scrutiny” in order to survive a First
Amendment challenge. See Sorrell, 131 S. Ct. at 2664 (“The
First Amendment requires heightened scrutiny whenever the
government creates a regulation of speech because of
disagreement with the message it conveys. . . . Commercial
3
“Prescriber-identifying information” is information that
identifies doctors and the drugs that they prescribe. It is
often used as a marketing tool by pharmaceutical sales
representatives. See Sorrell, 131 S. Ct. at 2659-60.
11
speech is no exception.”) (internal quotation marks and
citations omitted). However, the Court also concluded that
Vermont’s ban could not even withstand intermediate scrutiny
under Central Hudson. Thus, the Court did not actually apply
“heightened scrutiny,” striking the ban under Central Hudson
alone. Id. at 2667 (“[T]he outcome is the same whether a
special commercial speech inquiry or a stricter form of judicial
scrutiny is applied.”)
The College Newspapers and their amici argue that,
like the regulation at issue in Sorrell, the challenged
regulation here involves both content-based and speaker-based
discrimination. Based on this alleged discrimination, the
College Newspapers argue that strict scrutiny applies. 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 Central Hudson. 4
4
While Sorrell spoke in terms of “heightened scrutiny” as
opposed to “strict scrutiny,” the College Newspapers nonetheless
argue that strict scrutiny applies. To be sure, the question of
whether Sorrell’s “heightened scrutiny” is, in fact, strict
scrutiny remains unanswered. However, because we conclude that
the challenged regulation in this case fails Central Hudson, we
need not attempt to answer that question here.
12
B.
Next, we consider whether the challenged regulation
violates Central Hudson as applied to the College Newspapers.
Under Central Hudson, a regulation of commercial speech will be
upheld if (1) the regulated speech concerns lawful activity and
is not misleading; (2) the regulation is supported by a
substantial government interest; (3) the regulation directly
advances that interest; and (4) the regulation is not more
extensive than necessary to serve the government’s interest.
Central Hudson, 447 U.S. at 566.
Central Hudson applies to both facial and as-applied
challenges. See Swecker, 602 F.3d at 588. However, the type of
challenge dictates the state’s burden of proof. Id. In an as-
applied challenge, which we address here, the state must justify
the challenged regulation with regard to its impact on the
plaintiffs. 5 Id.
5
The difference between a facial challenge and an as-
applied challenge lies in the scope of the constitutional
inquiry. Under a facial challenge, a plaintiff may sustain its
burden in one of two ways. First, a plaintiff asserting a
facial challenge “may demonstrate ‘that no set of circumstances
exists under which the law would be valid, or that the law lacks
any plainly legitimate sweep.’” Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor and City Council of Balt., ---
F.3d ---, 2013 WL 3336884, at *11 (4th Cir. July 3, 2013)(en
banc)(alterations omitted)(quoting United States v. Stevens, 559
U.S. 460, 130 S. Ct. 1577, 1587 (2010)). Second, a plaintiff
asserting a facial challenge may also prevail if he or she
“show[s] that the law is ‘overbroad because a substantial number
(Continued)
13
Applying Central Hudson to the facts at hand, we
conclude that the district court erred in holding that, as
applied to the College Newspapers, the challenged regulation is
constitutionally permissible. Rather, we conclude that, as
applied to the College Newspapers, the challenged regulation
violates the First Amendment. We address each of the four
Central Hudson prongs in turn.
1.
Lawful Activity
All parties are in agreement that the first prong of
Central Hudson, i.e. whether the regulated speech concerns
lawful activity and is not misleading, is satisfied.
Specifically, the challenged regulation regulates lawful
activity, as alcohol advertisements -- even those that reach a
partially underage audience -- concern the lawful activity of
alcohol consumption. See Swecker, 602 F.3d at 589.
of its applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.’” Id. (alterations
omitted)(quoting Stevens, 130 S.Ct. at 1587). Under either
scenario, a court considering a facial challenge is to assess
the constitutionality of the challenged law “without regard to
its impact on the plaintiff asserting the facial challenge.”
Swecker, 602 F.3d at 588. In contrast, an as-applied challenge
is “based on a developed factual record and the application of a
statute to a specific person[.]” Richmond Med. Ctr. for Women
v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en banc).
14
Additionally, the ABC has not presented any evidence that the
advertisements implicated by this regulation are misleading.
Thus, this prong is clearly satisfied.
2.
Substantial Government Interest
“Next, we ask whether the asserted governmental
interest is substantial.” Central Hudson, 447 U.S. at 566. As
with the first prong, the parties are in agreement that
Virginia’s stated interest in combatting underage and abusive
drinking on college campuses represents a substantial
governmental interest. See, Swecker, 602 F.3d at 589.
Accordingly, the second Central Hudson prong is satisfied.
3.
Direct and Material Advancement
a.
Under Central Hudson’s third prong, the ABC must prove
that the challenged regulation directly advances the
government’s asserted interest. “This burden is not satisfied
by mere speculation or conjecture; rather, a governmental body
seeking to sustain a restriction on commercial speech must
demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree.”
Edenfield v. Fane, 507 U.S. 761, 770-71 (1993). To be sure,
under this prong, we do not require a government to produce
15
empirical data “accompanied by a surfeit of background
information[.]” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,
555 (2001) (internal quotation marks omitted). Rather, the
Supreme Court has “permitted litigants to justify speech
restrictions by reference to studies and anecdotes pertaining to
different locales altogether, or even, in a case applying strict
scrutiny, to justify restrictions based solely on history,
consensus, and simple common sense.” Id. (internal quotation
marks and citations omitted). Nonetheless, the burden remains
on the state to establish a commercial speech regulation’s
efficacy, and a regulation cannot be sustained “if there is
little chance that the restriction will advance the State’s
goal[.]” Id. at 566 (internal quotation marks and citations
omitted).
In Swecker, we concluded that the challenged
regulation satisfies the third prong because, given the general
correlation between advertising of a product and demand for that
product, it follows that a decrease in alcohol advertising on
college campuses will necessarily result in a decrease in
alcohol consumption by college students. Swecker, 602 F.3d at
590 (“Though the correlation between advertising and demand
alone is insufficient to justify advertising bans in every
situation, here it is strengthened because ‘college student
publications’ play an inimitable role on campus.” (internal
16
citations omitted)). Additionally, we concluded that the
efficacy of the regulation was further substantiated by the fact
that “alcohol advertisers want to advertise in college student
publications. It is counterintuitive for alcohol vendors to
spend their money on advertisements . . . if they believed that
these ads would not increase demand by college students.” Id.
(emphasis in original).
b.
On remand following Swecker, the district court
concluded that it was compelled to follow Swecker’s analysis on
this prong. We agree. While it is true, as the College
Newspapers argue, that Swecker dealt with a facial challenge and
the present action involves an as-applied challenge, this
distinction is immaterial under Central Hudson’s third prong.
See United States v. Edge Broad., 509 U.S. 418, 427 (1993).
Specifically, in Edge Broad., the Supreme Court was
faced with the question of whether a series of federal statutes
that prohibited the broadcast of lottery advertisements violated
the First Amendment as applied to a broadcaster licensed to do
business in a state that allowed lotteries. In analyzing the
statute under Central Hudson’s third prong, the Court noted that
it was “readily apparent that this question cannot be answered
by limiting the inquiry to whether the governmental interest is
directly advanced as applied to a single person or entity.”
17
Edge Broad., 509 U.S. at 427. According to the Court, “[e]ven
if there were no advancement as applied in that manner -- in
this case, as applied to Edge -- there would remain the matter
of the regulation’s general application to others -- in this
case, to all other radio and television stations in North
Carolina and countrywide.” Id.
Thus, while an as-applied challenge ordinarily compels
a reviewing court to take the challenger’s individual
circumstances into account when assessing the constitutionality
of a particular restriction, that general practice is
inapplicable when analyzing a provision under the third Central
Hudson prong. Accordingly, Swecker’s conclusion that the
challenged regulation directly and materially advances the
State’s asserted interest is dispositive of our analysis under
the third Central Hudson prong.
4.
Regulation More Extensive Than Necessary
The individual circumstances of the College Newspapers
are nonetheless relevant in this appeal. Per Edge Broadcasting,
those circumstances are relevant under Central Hudson’s fourth
prong, to which we now turn. See Edge Broad., 509 U.S. at 427
(“This is not to say that the validity of the statutes’
application to Edge is an irrelevant inquiry, but that issue
properly should be dealt with under the fourth factor of the
18
Central Hudson test.”). Under this prong of Central Hudson, the
party defending the regulation “must demonstrate narrow
tailoring of the challenged regulation to the asserted interest
-- a fit that is not necessarily perfect, but reasonable; that
represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served.” Greater
New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173,
188 (1999).
The ABC argues that the challenged regulation does not
fail under this fourth prong because it is “reasonably tailored”
to the stated aim of reducing underage and abusive alcohol
consumption. Specifically, the ABC notes that the challenged
regulation does not prohibit all alcohol advertisements and is
but one facet of its multi-faceted approach to combat the
problem of underage drinking. Given the dual purpose of the
regulation to combat both underage and abusive drinking, the
district court agreed. Specifically, the district court held
that, while the challenged regulation did have the effect of
preventing the dissemination of truthful information to legal
adults, this was not unduly out-of-proportion to the second half
of the government’s stated aim: reducing abusive alcohol
consumption by college students who are 21 years of age or
older.
19
We disagree. Instead, we conclude that in this as-
applied challenge, “based on . . . the application of [the
challenged regulation] to [these] specific” plaintiffs, Richmond
Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir.
2009) (en banc), the challenged regulation fails under the
fourth Central Hudson prong because it prohibits large numbers
of adults who are 21 years of age or older from receiving
truthful information about a product that they are legally
allowed to consume.
In Lorillard, the Supreme Court struck down a
Massachusetts statute prohibiting tobacco advertising within
1,000 feet of a school. In concluding that the statute was not
adequately tailored to pass muster under Central Hudson’s fourth
prong, the Supreme Court indicated that, while it was true that
Massachusetts had a substantial interest in preventing underage
tobacco use, it was also true that “the sale and use of tobacco
products by adults is a legal activity. We must consider that
tobacco retailers and manufacturers have an interest in
conveying truthful information about their products to adults,
and adults have a corresponding interest in receiving truthful
information about tobacco products.” Lorillard, 533 U.S. at
564.
Here, a majority of the College Newspapers’ readers
are age 21 or older. Specifically, roughly 60% of the
20
Collegiate Times’s readership is age 21 or older and the
Cavalier Daily reaches approximately 10,000 students, nearly 64%
of whom are age 21 or older. Thus, the College Newspapers have
a protected interest in printing non-misleading alcohol
advertisements, just as a majority of the College Newspapers’
readers have a protected interest in receiving that information.
Accordingly, the challenged regulation is unconstitutionally
overbroad.
In Pitt News v. Pappert, the Third Circuit reached a
similar conclusion on similar facts. See 379 F.3d 96 (3d Cir.
2004). That case involved a Pennsylvania Liquor Control Board
regulation prohibiting alcohol advertisements in college or
university publications. The Pitt News, the University of
Pittsburgh’s student newspaper, brought an action under 42
U.S.C. § 1983, alleging that the regulation violated the First
Amendment as applied. The Third Circuit agreed, invalidating
the prohibition under Central Hudson’s fourth prong and noting
that “[m]ore than 67% of Pitt students and more than 75% of the
total University population is over the legal drinking age and,
in Lorillard, the Supreme Court held that a restriction on
tobacco advertising was not narrowly tailored in part because it
prevented the communication to adults of truthful information
about products that adults could lawfully purchase and use.”
Id. at 108.
21
In analyzing the challenged regulation under Central
Hudson’s fourth prong, the district court concluded that the
fact that a majority of the College Newspapers’ readers were age
21 or older did not render the challenged regulation overbroad
because the regulation was designed, in part, to prevent abusive
drinking by persons who are of legal age to drink. However,
regardless of the importance of this interest, the ABC’s
approach remains overbroad under Supreme Court precedent.
In Sorrell, Vermont attempted to justify its
prohibition on the commercial disclosure of prescriber-
identifying information based on the fact that the use of such
information by pharmaceutical representatives “undermines the
doctor-patient relationship by allowing detailers to influence
treatment decisions.” Sorrell, 131 S. Ct. at 2670. The Supreme
Court rejected this argument, observing that “‘[t]he First
Amendment directs us to be especially skeptical of regulations
that seek to keep people in the dark for what the government
perceives to be their own good.’” Id. at 2671 (quoting 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996)).
Thus, the Court held that states may not “seek to remove a
popular but disfavored product from the marketplace by
prohibiting truthful, non-misleading advertisements.” Id. at
2670. Accordingly, the Court invalidated the Vermont ban under
Central Hudson.
22
Here, the portion of the challenged regulation seeking
to prevent the dissemination of alcohol advertisements to
readers age 21 or older does exactly what Sorrell prohibits: it
attempts to keep would-be drinkers in the dark based on what the
ABC perceives to be their own good. Therefore, the district
court erred in concluding that the challenged regulation is
appropriately tailored to achieve its objective of reducing
abusive college drinking.
IV.
Because a regulation of commercial speech must satisfy
all four Central Hudson prongs in order to survive an as-applied
challenge, and the regulation in question here does not satisfy
the fourth prong, the challenged regulation violates the First
Amendment as applied to the College Newspapers. Therefore, the
judgment of the district court is
REVERSED.
23
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
(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
24
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 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.
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