Educational Media Co. v. Insley, No. 12-2183 (4th Cir. 2013)
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College Newspapers challenged the ABC's ban on alcohol advertisements as violative of the First Amendment. The court concluded that the challenged regulation violated the First Amendment as applied to the College Newspapers where a regulation of commercial speech must satisfy all four Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y. prongs in order to survive an as-applied challenge, and the regulation at issue here did not satisfy the fourth prong. The district court erred in concluding that the challenged regulation was appropriately tailored to achieve its objective of reducing abusive college drinking. Accordingly, the court reversed the district court's grant of summary judgment in favor of the ABC.
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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 ABC ) Virginia prohibits Alcoholic college alcohol advertisements. Cavalier Daily Newspapers ) newspapers University Beverage student Control newspapers from at Appellants or non-profit corporations that Virginia ( Virginia (the printing Appellants Educational Media and The (hereinafter are Board Polytechnic Tech ) ( UVA ), respectively. and the the College own Institute University student and of State Virginia 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 constitutionally that appropriate the challenged restriction of regulation commercial is a speech given Virginia s substantial interest in combatting underage and abusive applied drinking on challenge, college campuses. because the However, advertising in ban this as- is not appropriately tailored to Virginia s stated aim, we reverse the judgment of the district court. I. Virginia precludes college printing alcohol advertisements. 40(A)(2)(2010) (the challenged regulation provides: 3 student newspapers from See 3 Va. Admin. Code § 5-20regulation ). The challenged 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 extracurricular 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 regulation was violative of the First Amendment. Newspapers made three distinct arguments. that the against a challenged narrow regulation segment of the The College First, they argued impermissibly media challenged -- discriminates college student newspapers -- thus subjecting the regulation to the exacting strict scrutiny withstand. standard, which, they argued, it cannot 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). even if the challenge Finally, the College Newspapers argued that, challenged under Central regulation Hudson, the could withstand regulation a fails facial 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 reasonable to him, this substitute assumption for holds true regulated the only where forum exists. a 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 J.A. 313. 2 students. towards and reaches college 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 testimony of Pennsylvania Nelson contrast, Dr. Jon State testified the P. College Nelson, University. that Newspapers offered the economics professor at an Based on [a]dvertising his bans, research, Dr. 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 market demand. loyalty[,] Id. as opposed to expanding overall 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 alcohol consumption. has effectively reduced levels of 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. the Virginia Tech Specifically, the Collegiate Times -- 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 readership of about 10,000 readers. 7 Daily has a daily As of January 1, 2007, persons age 21 or over comprised approximately 64% of UVA s total student population. B. In district 2008, court following granted the the close College of discovery, Newspapers motion the for summary judgment, declaring that the challenged regulation was facially unconstitutional determined face, that the the under regulation district court Central failed declined Hudson. Central to Having Hudson reach the on its 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 premised solely the on underlying the College district court Newspapers opinion facial was 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 judgment 2012, parties without the then filed supplementing district court cross the motions record. granted the On ABC s for summary September motion simultaneously, denied the College Newspapers motion. 7, and, In so doing, the district court first rejected the College Newspapers contention that strict scrutiny applied, opting analyze the regulation under Central Hudson. instead to 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 de novo, judgment review a district viewing court the order evidence favorable to the non-moving party. in granting the summary light most Lansdowne on the Potomac Homeowners Ass n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 195 (4th Cir. 2013). In commercial reviewing speech, [i]t a challenge is well 9 to a established restriction that the on party 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 Amendment, commercial there is a speech is protected commonsense by the distinction commercial speech and other varieties of speech. First between Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n of New York, 447 U.S. 557, 562 (1980). lesser Thus, [t]he Constitution . . . accords a protection constitutionally to commercial guaranteed speech expression. than Id. to at other 562-63. Accordingly, under Central Hudson, a restriction on commercial speech must withstand intermediate survive a First Amendment challenge. scrutiny in order to Id. at 573 (Blackmun, J. concurring); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995). The parties agree that impacts only commercial speech. the challenged regulation 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). Sorrell, the prevented Supreme Court from pharmacies invalidated revealing information 3 for marketing purposes. a Vermont In law that prescriber-identifying 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 that, by Supreme only identifying Court invalidated prohibiting information for the the ban, concluding of prescriber- disclosure 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 Amendment challenge. First Amendment government order to survive a First See Sorrell, 131 S. Ct. at 2664 ( The requires creates in a heightened regulation scrutiny of whenever the because of speech disagreement with the message it conveys. . . . 3 Commercial 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. ) citations omitted). Vermont s ban could (internal However, not the even quotation Court withstand also marks and concluded that intermediate scrutiny under Central Hudson. Thus, the Court did not actually apply heightened striking alone. scrutiny, Id. at 2667 ( [T]he the ban outcome is under the Central same Hudson whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied. ) The like the regulation College regulation here discrimination. Newspapers and their at in Sorrell, involves Based issue both on amici content-based this alleged argue the and that, challenged speaker-based discrimination, College Newspapers argue that strict scrutiny applies. the 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; substantial advances extensive (2) government that than the regulation interest; (3) the the regulation interest; and necessary to (4) serve the is supported regulation is government s by a directly not more 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 plaintiffs. 5 regulation with regard to its impact on the Id. 5 The difference between a facial challenge and an asapplied 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 conclude Central that district the Hudson to court the erred facts hand, we holding in at that, as applied to the College Newspapers, the challenged regulation is constitutionally applied violates to the the permissible. College First Rather, Newspapers, Amendment. We the we conclude challenged address each that, as regulation of the four Central Hudson prongs in turn. 1. Lawful Activity All parties are in agreement that the first prong of Central Hudson, lawful activity Specifically, i.e. the and whether is the not challenged regulated speech misleading, regulation is concerns satisfied. 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 interest is substantial. with the first prong, whether the asserted governmental Central Hudson, 447 U.S. at 566. the parties are in agreement As that Virginia s stated interest in combatting underage and abusive drinking on governmental college interest. campuses See, represents Swecker, a 602 substantial 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 government s asserted interest. directly advances the 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 information[.] 555 (2001) Supreme by a surfeit of background Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, (internal Court has quotation marks permitted omitted). litigants to Rather, justify the 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 consensus, and simple common sense. marks and citations omitted). on the state efficacy, little and chance goal[.] to a establish regulation that the solely on history, Id. (internal quotation Nonetheless, the burden remains a commercial cannot be restriction speech sustained will regulation s if advance there the is State s 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 alcohol consumption by college students. 590 ( Though alone is situation, the correlation insufficient to here publications it play is an between justify 16 a advertising because role decrease in Swecker, 602 F.3d at advertising strengthened inimitable in on and bans in college campus. demand every student (internal 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 17 a single person or entity. 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 Carolina and countrywide. and television stations in North 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. challenged Accordingly, regulation Swecker s directly and conclusion materially that the 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 the is not to say that 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 regulation defending the 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 consumption. aim of reducing underage and abusive alcohol Specifically, the ABC notes that the challenged regulation does not prohibit all alcohol advertisements and is but one facet of its multi-faceted problem of underage drinking. approach to combat the 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 consumption by college stated aim: students older. 19 who reducing are 21 abusive years of alcohol age or We disagree. applied challenge, Instead, we conclude that in this as- 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 truthful who are 21 information years about a of age or older product that Supreme Court from they receiving are legally allowed to consume. In Massachusetts Lorillard, statute the prohibiting 1,000 feet of a school. tobacco struck advertising down a within 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. tobacco retailers and We must consider that 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, 20 roughly 60% of the 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. a protected interest in Thus, the College Newspapers have 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. 2004). See 379 F.3d 96 (3d Cir. That case involved a Pennsylvania Liquor Control Board regulation prohibiting university publications. Pittsburgh s student alcohol The advertisements Pitt newspaper, News, brought an in the college or University of 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. regardless of the importance of this interest, However, the ABC s approach remains overbroad under Supreme Court precedent. In prohibition Sorrell, on the Vermont attempted commercial to disclosure justify of its 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. Court argument, rejected this observing that The Supreme [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 prohibiting 2670. disfavored truthful, product from non-misleading the marketplace advertisements. Id. by at 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. court erred appropriately in concluding tailored to that the achieve Therefore, the district challenged its regulation objective of is 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. 325. See J.A. For example, officials at the University of Virginia have undertaken students, alcohol-education underage students, efforts student aimed athletes, at first-year fraternity sorority members, and the University community in general. J.A. 214 18, 239 44. Tech. and See Similar efforts have been made at Virginia See J.A. 115 212. This comprehensive plan adopted by Virginia only minimally impacts aimed commercial at a speech targeted by market attempting which 24 to limit includes a advertising 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 comprehensive plan in to college address newspapers a very as part serious of a problem. Therefore, I believe that § 5-20-40(A)(2) is a reasonable fit to drinking. the state s goal of reducing underage For these reasons, I respectfully dissent. 25 and abusive
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