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Media Alerts - Educational Media Co. at VT v. J. Insley - Fourth Circuit
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November 11, 2013
  Educational Media Co. at VT v. J. Insley - Fourth Circuit
Headline: First Amendment Protects Alcohol Advertisement in College Student Newspapers

Area of Law: First Amendment; Constitutional Law

Issue Presented: Whether the Virginia Alcoholic Beverage Control Board ban prohibiting college student newspapers from printing alcohol advertisements violates the First Amendment, as applied to Educational Media and The Cavalier Daily.

Brief Summary: Two corporations that own college student newspapers brought a First Amendment challenge against a Virginia Alcoholic Beverage Control Board regulation that prohibits college student newspapers from printing alcohol advertisements. The purpose of the regulation is to combat underage and abusive drinking on college campuses. Initially, the District Court found the ban unconstitutional. On remand from the Fourth Circuit, the District Court reversed course and held the ban was constitutional. On appeal, the Fourth Circuit held that the regulation was unconstitutional as applied to the college newspapers, because it was not appropriately tailored to its purpose.

Significance: When an alcohol advertisement regulation affects a population where a majority of readers can legally purchase and consume alcohol, the First Amendment protects the rights of those readers to receive truthful, non-misleading information.

Extended Summary: The Virginia Alcoholic Beverage Control Board ("ABC") prohibits college student newspapers from printing alcohol advertisements. In 2006, two non-profit corporations, Educational Media and The Cavalier Daily ("College Newspapers"), challenged the ABC ban on alcohol advertisements as violating the First Amendment. The College Newspapers own student newspapers at Virginia Polytechnic Institute and State University and the University of Virginia.

The parties provided contradicting expert testimony that focused largely on the effectiveness of the ban in accomplishing its purpose of combatting underage and abusive college drinking. For example, the expert for the ABC testified that studies finding that alcohol advertisement bans do not reduce overall market demand are only relevant if banning advertising in one forum pushes it to another. In the instant case, the expert asserted there was no other forum to replace the media targeted toward students the newspapers offer, and thus the regulation was narrowly tailored. The expert for the College Newspapers, on the other hand, testified that advertising bans do not reduce demand for alcohol, and that there are other forums, such as TV, radio, and internet, that reach college students. The ABC conceded that other methods of addressing alcohol consumption on college campuses have been more effective. The ABC also conceded that the majority of readers of the newspapers in this case are over age 21.

Initially, the District Court for the Eastern District of Virginia granted summary judgment for the College Newspapers, finding the regulation facially unconstitutional under the Supreme Court's Central Hudson test. On appeal, a panel of the United States Court of Appeals for the Fourth Circuit reversed, holding that the regulation was not facially unconstitutional, and remanded the case for the District Court to consider whether it was unconstitutional as applied to the College Newspapers, or whether strict scrutiny applied. The District Court then granted summary judgment for the ABC, holding that strict scrutiny did not apply and that the ban did not violate Central Hudson as applied to the College Newspapers.

On a second appeal, the Fourth Circuit again reversed the District Court, this time holding that the ban was unconstitutional as applied to the College Newspapers, because it was not appropriately tailored to Virginia's stated aim.

The Central Hudson test requires four factors to be met in order for the regulation of commercial speech to be lawful. The Fourth Circuit found that the alcohol advertising ban met only three of the four requirements. First, the regulation regulated lawful speech that concerned a lawful activity and was not misleading. Second, the regulation was supported by a substantial government interest in combatting underage and abusive drinking on college campuses. Third, the regulation directly advanced the interest because there is a general correlation between the advertising of a product and the demand for that product.

The Fourth Circuit found that the regulation failed the fourth factor, which requires that the regulation be only as extensive as necessary to serve the government's interest. In this case, the ban prohibited large numbers of adults who are 21 or over from receiving information about a product they can legally consume. The Fourth Circuit reasoned that college newspapers have a protected interest in printing non-misleading alcohol advertisements, and that those readers have a protected interest in receiving that information. Because the ban was more extensive than necessary to address the goals of the ABC, the Fourth Circuit held it unconstitutional as applied to the College Newspapers.

Judge Shedd dissented, finding that the regulation was a reasonable fit to Virginia's interest in combatting underage and abusive drinking on college campuses, because it only minimally impacted commercial speech by attempting to limit advertising to an audience that included readers who cannot legally consume alcohol.

To read the full opinion, please visit: http://www.ca4.uscourts.gov/Op...ublished/122183.P.pdf

Panel: Judges King, Shedd, and Thacker

Argument Date: 05/14/13

Date of Issued Opinion: 09/25/13

Docket Number: 12-2183

Decided: Reversed.

Case Alert Author: Megan E. Ix

Counsel: 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.

Author of Opinion: Thacker, J. (majority); Shedd, J. (dissenting)

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/11/2013 08:42 PM     4th Circuit  

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