First Amendment - Commercial Speech - Fourth Circuit Holds That a Regulation Largely Prohibiting Alcohol Advertisements in College Newspapers Is Constitutional

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-- Educational Media Co. at Virginia Tech v. Swecker, 602 F.3d 583 (4th Cir. 2010).

Government regulation of the advertisement of "vice" products, such as tobacco and alcohol, is subject to the First Amendment commercial speech doctrine. The Supreme Court employs the four-prong analysis set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission (1) to test whether government regulations on vice advertising are constitutional under this doctrine. (2) Recently, in Educational Media Co. at Virginia Tech v. Swecker, (3) the Fourth Circuit held that a regulation largely prohibiting college newspapers from publishing alcohol advertisements met the four prongs of the Central Hudson test and thus did not violate the First Amendment. (4) But in taking only a cursory look at other direct means of regulating alcohol consumption, the Fourth Circuit applied Central Hudson's narrow tailoring requirement in a way that differed markedly from the Supreme Court's application of this prong in cases addressing the constitutionality of vice advertising regulations. The Fourth Circuit's application of the Central Hudson test pushed back against the Supreme Court's mode of analysis: while ostensibly following the Court's test, in practice this case represents a much more deferential approach to child protection censorship than what the Court has authorized.

The Virginia Alcoholic Beverage Control Board is responsible for regulating alcohol sales and distribution in Virginia. (5) The Board issued section 5-20-40 (B) (3), (6) which prohibits "beer, wine and mixed beverage[]" advertisements from being published in "college student publications" unless the advertisement is for a "dining establishment." (7)Even then, the advertisements "shall not contain any reference to particular brands or prices." (8) The regulation defines "college student publication" as a publication that, among other things, "is distributed or intended to be distributed primarily to persons under 21 years of age." (9) Two nonprofit Virginia corporations that publish student-run newspapers (10) filed a complaint alleging that section 5-20-40 (B) (3) was an unconstitutional restriction on commercial speech under the First Amendment. (11) Although the majority of the readership of these newspapers is over the age of 21, the corporations had been advised that "they would violate [sections] 5-20-40 (B) (3) if they published a specific alcohol advertisement." (12) Therefore, as the Fourth Circuit later held, the newspapers could challenge the regulation. (13)

The district court granted summary judgment for the plaintiffs. (14) The court employed the four-prong test set forth in Central Hudson to determine whether section 5-20-40 (B) (3) was constitutional. (15) The test is satisfied when: 1) "the expression is protected by the First Amendment"; 2) "the asserted governmental interest is substantial"; 3) "the regulation directly advances the governmental interest asserted"; and 4) the regulation "is not more extensive than is necessary." (16) As the speech at issue did not concern unlawful activity and was not misleading, the court found that the first prong was satisfied. (17) The court also found that the second prong was met because "the reduction of un-derage and over-consumption of alcohol on college campuses ... constitutes a substantial governmental interest." (18) The court focused its opinion on the third and fourth prongs. Pointing to the lack of evidence that the regulation "advance[d] the substantial interests asserted to a material degree," the court found that "the regulation [did] not meet the third prong of the Central Hudson test." (19) The court also held that section 5-20-40 (B) (3) did not satisfy the fourth prong because it was "more extensive than necessary to serve the interests of preventing underage and abusive drinking." (20) The court reached this conclusion by finding that the regulation "broadly affect[ed] all readers of college newspapers in the Commonwealth of Virginia" and "prohib-it[ed] adult readers--who comprise the majority of readers [of the protesting newspapers]--from receiving the communications. …