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4th Cir. Allows Alcohol Ads in 2 Major College Newspapers

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By William Peacock, Esq. on September 26, 2013 4:54 PM

As a former resident of the Commonwealth, I must point out one thing: Virginia is pretty uptight about liquor. You can buy beer at a gas station, but if you want hard liquor, you have to drive to your nearest state-owned Alcohol Beverage Control store. This was a foreign concept for someone moving from California.

That same "ABC" administration also apparently regulates alcohol advertising, and has prohibited the advertisement of alcohol in student-run newspapers, unless the booze is flowing from a local restaurant. Obviously, this means less revenue for the papers, leading newspapers from two of the state's largest universities, the University of Virginia and Virginia Tech, to bring suit.

The ABC, of course, thinks a ban on advertising will reduce underage consumption. About 60 percent of the newspapers' readers are 21 and over.

Facial Challenge Denied

In the last trip to the Fourth Circuit, the panel reversed the lower court's holding that the regulation violated the First Amendment on its face, and remanded for questions of whether the regulation is subject to, and fails, strict scrutiny, as well as whether it fails the Central Hudson test for regulation of commercial speech as applied.

On remand, the district court granted summary judgment to ABC, stating that based on the Fourth Circuit's previous opinion, its hands were tied. Again, however, it was reversed.

Standard, Schmandard. Fails Either Way

A large part of the opinion discusses whether strict or intermediate scrutiny (under the Central Hudson test) applies when a regulation is both content-based (booze) and speaker-based (student papers).

The court declined to address the matter, however, as it held that the restriction failed under the more lenient Central Hudson test, where 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.

Everyone agreed that drinking is a lawful activity, and that fighting underage drinking is a substantial government interest. In the last trip to the court, it already decided the third prong, and held that liquor companies want to advertise in college papers for a reason. (It helps sales!) Cutting back on the ads cuts back on the sales and the resulting underage drinking.

But Is It Reasonably Narrowly Tailored?

Nope. the restriction fails the fourth 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."

Recall that the majority of the readership of both papers, and the student bodies in general, are over 21.

The court also cited a factually identical case, involving the University of Pittsburgh in the Third Circuit, which came to the same holding on the fourth prong of the Central Hudson test.

Dissent

Judge Shedd, it seems, simply hates fun. He argues that the regulation, as part of comprehensive plan to battle underage drinking, was indeed narrowly tailored.

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