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

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EDUCATIONAL MEDIA COMPANY AT 
VIRGINIA TECH, INCORPORATED;
CAVALIER DAILY, INCORPORATED, The
Cavalier Daily, Incorporated,
Plaintiffs-Appellees,
v.
SUSAN R. SWECKER, Commissioner,
Virginia Alcoholic Beverage Control
Commission; PAMELA O’BERRY
EVANS, 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
 No. 08-1798
Virginia Department of Alcoholic
Beverage Control; ESTHER H.
VASSAR, Commissioner, Virginia
Alcoholic Beverage Control
Commission,
Defendants-Appellants.
THOMAS JEFFERSON CENTER FOR THE
PROTECTION OF FREE EXPRESSION;
STUDENT PRESS LAW CENTER;
COLLEGE NEWSPAPER BUSINESS AND
ADVERTISING MANAGERS,
Amici Supporting Appellees. 
2 EDUCATIONAL MEDIA CO. v. SWECKER
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: October 29, 2009
Decided: April 9, 2010
Before SHEDD, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
Norman K. MOON, United States District Judge
for the Western District of Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge Shedd
wrote the majority opinion, in which Senior Judge Hamilton
joined. Judge Moon wrote a dissenting opinion.
COUNSEL
ARGUED: Catherine Crooks Hill, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellants. Rebecca Kim Glenberg, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA,
Richmond, Virginia, for Appellees. ON BRIEF: William C.
Mims, Attorney General, Stephen R. McCullough, Solicitor
General of Virginia, Maureen Riley Matsen, Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants. Frank M.
Feibelman, Cooperating Attorney, ACLU OF VIRGINIA,
Richmond, Virginia, for Appellees. J. Joshua Wheeler, Robert
M. O’Neil, THE THOMAS JEFFERSON CENTER FOR
THE PROTECTION OF FREE EXPRESSION, Charlottes-
ville, Virginia, for the Thomas Jefferson Center for the Pro-
EDUCATIONAL MEDIA CO. v. SWECKER 3
tection of Free Expression, Amicus Supporting Appellees.
Katherine A. Fallow, Carrie F. Apfel, Garrett A. Levin, JEN-
NER & BLOCK, LLP, Washington, D.C.; Frank D. LoMonte,
Michael C. Hiestand, STUDENT PRESS LAW CENTER,
Arlington, Virginia, for Student Press Law Center and Col-
lege Newspaper Business and Advertising Managers, Amici
Supporting Appellees.
OPINION
SHEDD, Circuit Judge:
The Commonwealth of Virginia, through its Alcoholic
Beverage Control Board ("the Board"), regulates advertise-
ments for alcohol. In this action, Educational Media Company
at Virginia Tech (The Collegiate Times) and The Cavalier
Daily, Inc. (The Cavalier Daily) (collectively, "the college
newspapers") argue that two of the Board’s regulations
restricting alcohol advertisements (3 Va. Admin. Code §§ 5-
20-40(A) & (B)(3)) violate their First Amendment rights. The
district court granted the college newspapers’ motion for sum-
mary judgment, declared both provisions facially unconstitu-
tional, and permanently enjoined their enforcement. On
appeal, the Board challenges only the court’s invalidation of
§ 5-20-40(b)(3). For the reasons set forth below, we reverse
and remand.
I.
We review the district court’s order granting summary
judgment de novo, viewing the evidence in the light most
favorable to the Board. Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004). The Board, a
subsidiary of the Department of Virginia Alcoholic Beverage
Control, is charged with regulating the importation and distri-
bution of alcohol within the Commonwealth of Virginia. See
4 EDUCATIONAL MEDIA CO. v. SWECKER
Va. Code Ann. § 4.1-103. To carry out this duty, the Board
has the authority to "promulgate reasonable regulations." Va.
Code Ann. § 4.1-111(A).
The Board exercises its authority in various ways to fight
illegal and abusive drinking on college campuses in the Com-
monwealth. For example, the Board prohibits various types of
advertisements for alcohol in any "college student publica-
tion," which it defines as any college or university publication
that is: (1) prepared, edited, or published primarily by its stu-
dents; (2) sanctioned as a curricular or extracurricular activity;
and (3) "distributed or intended to be distributed primarily to
persons under 21 years of age." 3 Va. Admin. Code § 5-20-
40(B)(3). Qualifying publications may not print advertise-
ments for beer, wine, or mixed beverages unless the ads are
"in reference to a dining establishment." Id. These exempted
alcohol advertisements may not refer to brand or price, but
they may use five approved words and phrases, including
"A.B.C. [alcohol beverage control] on-premises," "beer,"
"wine," "mixed beverages," "cocktails," or "any combination
of these words." Id.In addition to this advertising ban, the Board publishes edu-
cational pamphlets on the dangers of underage and binge
drinking on college campuses, targeted at both underage stu-
dents and their parents. Further, the Board enforces its regula-
tions by carefully allocating its limited number of officers to
target "big events that are likely to gather college students,"
J.A. 257, and the Board gives grants to colleges and college
communities to supplement these targeted efforts.
The Collegiate Times is a student-run newspaper at Vir-
ginia Polytechnic Institute and State University, and The Cav-
alier Daily is a student-run newspaper at the University of
Virginia. The newspapers rely on advertisement revenue to
EDUCATIONAL MEDIA CO. v. SWECKER 5
operate, and because of the ban embodied in § 5-20-40(B)(3),
each loses approximately $30,000 a year in advertising revenue.1
The college newspapers filed a complaint, alleging that § 5-
20-40(B)(3) violates their First Amendment rights. The col-
lege newspapers mounted both facial and as-applied chal-
lenges to § 5-20-40(B)(3). For relief, the college newspapers
sought a declaration that § 5-20-40(B)(3) is unconstitutional
and an injunction prohibiting its enforcement. After both sides
moved for summary judgment, the district court declared § 5-
20-40(B)(3) facially unconstitutional as an invalid ban on
commercial speech.2 Subsequently, the court permanently
enjoined the enforcement of § 5-20-40(B)(3). The Board now
appeals.
1
The district court determined that both college newspapers were "col-
lege student publications" as defined by § 5-20-40(B)(3). J.A. 73 & 75.
However, the parties agree that a majority of the readership of the college
newspapers is over the age of twenty-one. J.A. 85. Though this concession
appears to preclude the college newspapers from qualifying as "college
student publications," in a pre-enforcement challenge, the college newspa-
pers need only demonstrate "‘a credible threat of prosecution’ under the
statute or regulation." Virginia Soc’y for Human Life, Inc. v. FEC, 263
F.3d 379, 386 (4th Cir. 2001) (quoting Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979)). Here, an Alcoholic Beverage
Control Compliance Officer specifically advised The Collegiate Times that
they would violate § 5-20-40(B)(3) if they published a specific alcohol
advertisement, J.A. 73, and the Chief Operating Officer and Secretary to
the Board of the Department of Alcoholic Beverage Control opined that
both college newspapers would qualify as college student publications.
J.A. 523. Therefore, regardless of whether § 5-20-40(B)(3) applies to these
college newspapers, they have a sufficient credible fear of prosecution
under this regulation.
2
The district court did not reach the college newspapers’ alternative
arguments that § 5-20-40(B)(3) violates the First Amendment because (1)
as-applied, it unconstitutionally restricts commercial speech under Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S.
557 (1980), and (2) on its face and as-applied, it unconstitutionally dis-
criminates against a particular segment of the media under Pitt News v.
Pappert, 379 F.3d 96, 109 (3rd Cir. 2004). Though the college newspapers
reiterate these alternative arguments on appeal, we decline to address them
in the first instance.
6 EDUCATIONAL MEDIA CO. v. SWECKER
II.
The Board argues that the district court erred by determin-
ing that § 5-20-40(B)(3) facially violates the First Amendment.3
Both parties agree that to determine whether a regulatory bur-
den on commercial speech violates the First Amendment, we
apply the four-part test set forth in Central Hudson Gas &
Electric Corp. v. Public Service Commission of New York,
447 U.S. 557, 566 (1980).
Under Central Hudson, we must first consider whether the
commercial speech is protected by the First Amendment. If it
is, the government must then assert a "substantial" interest to
justify its regulation. We must then decide whether the regula-
tion directly advances the government’s interest and whether
the regulation is not "more extensive than is necessary to
serve that interest." Id. This test applies to both facial and as-
applied challenges. See, e.g., Posadas de Puerto Rico Assoc.
v. Tourism Co. of Puerto Rico, 478 U.S. 328, 339-44 (1986)
(facial challenge); Greater New Orleans Broad. Ass’n, Inc. v.
United States, 527 U.S. 173, 183-95 (1999) (as-applied chal-
lenge). However, the type of challenge to a provision — facial
or as-applied — dictates the state’s burden of proof.
"[A] facial challenge to an ordinance restricting commer-
cial speech may be resolved as a question of law when the
government meets the burden placed on it by Central Hud-
son." Penn Advertising of Baltimore, Inc. v. Schmoke, 63 F.3d
1318, 1322-23 (4th Cir. 1995), vacated on other grounds,
Penn Advertising of Baltimore, Inc. v. Schmoke, 518 U.S.
1030 (1996). The government may meet this burden by refer-
3
The Board also argues that the district court erred because it enter-
tained a facial challenge to § 5-20-40(B)(3). Although there is judicial dis-
favor of facial challenges, there is no proscription on such challenges. See
Washington State Grange v. Washington State Republican Party, 552 U.S.
442, 449-51 (2008) (discussing the problems with facial challenges with-
out banning their use); West Virginia Ass’n of Club Owners and Fraternal
Serv. Inc. v. Musgrave, 553 F.3d 292, 300-02 (4th Cir. 2009) (same).
EDUCATIONAL MEDIA CO. v. SWECKER 7
ence to the challenged regulation and its legislative history.
Id. at 1323. Therefore, a court considers the facial constitu-
tionality of a regulation without regard to its impact on the
plaintiff asserting the facial challenge. Id.
A.
We first consider whether the First Amendment protects the
commercial speech in this case. To qualify for First Amend-
ment protection, commercial speech must (1) concern lawful
activity and (2) not be misleading. Central Hudson, 447 U.S.
at 566-68. The Board argues that § 5-20-40(B)(3) only regu-
lates commercial speech concerning unlawful activity because
it only applies to student newspapers which are "distributed
or intended to be distributed primarily to persons under 21
years of age," § 5-20-40(B)(3), and in Virginia, it is illegal to
sell alcohol to anyone under twenty-one. Va. Code Ann.
§ 4.1-302.
We have recognized that advertisements for age-restricted
— but otherwise lawful — products concern lawful activity
where the audience comprises both underage and of-age
members. See, e.g., West Virginia Ass’n of Club Owners and
Fraternal Serv. Inc. v. Musgrave, 553 F.3d 292, 302 (4th Cir.
2009) (video lottery ads in retail stores); Anheuser-Busch, Inc.
v. Schmoke, 63 F.3d 1305, 1313 (4th Cir. 1995) (Anheuser-
Busch I) (alcohol advertisements in public), vacated on other
grounds, Anheuser-Busch, Inc. v. Schmoke, 517 U.S. 1206(1996). On its face, § 5-20-40(B)(3) does not restrict commer-
cial speech solely distributed to underage students; rather, it
applies to commercial speech that, though primarily intended
for underage students, also reaches of-age readers. Therefore,
the commercial speech regulated by § 5-20-40(B)(3) concerns
lawful activity.
Further, because this is a facial, pre-enforcement challenge,
"[w]e assume that the speech is not misleading because . . .
[the Board] has not provided evidence that the speech is actu-
8 EDUCATIONAL MEDIA CO. v. SWECKER
ally misleading, and there is no evidence that the advertising
restrictions were enacted to prevent the dissemination of mis-
leading information." Musgrave, 553 F.3d at 302. The district
court, therefore, properly found that § 5-20-40(B)(3) restricts
commercial speech protected by the First Amendment.
B.
"Next, we ask whether the asserted governmental interest
is substantial." Central Hudson, 447 U.S. at 566. The Board
contends that it has a substantial interest in combating the
serious problem of underage drinking and abusive drinking by
college students. The college newspapers do not dispute that
this interest is substantial. See Appellee’s Br. 14. Therefore,
like the district court, we find the Board’s interest to be sub-
stantial.
C.
We next consider whether the advertising ban "directly and
materially" advances the government’s substantial interest.
Musgrave, 553 F.3d at 303 (internal citation and quotation
omitted). To determine whether this prong is satisfied "we
focus on the relationship between the State’s interests and the
advertising ban." Central Hudson, 447 U.S. at 569. This rela-
tionship, or link, need not be proven by empirical evidence;
rather, it may be supported by "history, consensus, and simple
common sense." Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 555 (2001) (quoting Florida Bar v. Went For It, Inc., 515
U.S. 618, 628 (1995)). However, the link is insufficient if it
is irrational, contrary to specific data, or rooted in speculation
or conjecture. Musgrave, 553 F.3d at 304.
The Board asserts that history, consensus, and common
sense support the link between advertising bans in college
newspapers and a decrease in demand for alcohol among col-
lege students. The Board cites judicial decisions recognizing
this general link and argues that, here, this link is extraordi-
EDUCATIONAL MEDIA CO. v. SWECKER 9
narily strong because college newspapers, a targeted form of
media bearing the name of the college, attract more attention
among college students than other forms of mass media. The
Board also notes that, given the amount of money alcohol
vendors spend on advertisement, it is illogical to think that
alcohol ads do not increase demand. The college newspapers
counter by arguing that: (1) there is no evidence that alcohol
advertising bans in college publications decrease demand
among college students and (2) a ban on alcohol advertising
in college publications is ineffective because college students
see ads for alcohol in various other forms of media.4 The dis-
trict court agreed with the college newspapers.
We, however, find the link between § 5-20-40(B)(3) and
decreasing demand for alcohol by college students to be
amply supported by the record, and the district court erred by
finding otherwise. Though the correlation between advertising
and demand alone is insufficient to justify advertising bans in
every situation, Musgrave, 553 F.3d at 304, here it is strength-
ened because "college student publications" primarily target
college students and play an inimitable role on campus. See
J.A. 259 ("The college publication is where [college students
are] looking to find out what’s going on in their college com-
munity, what’s happening."). This link is also supported by
the fact that alcohol vendors want to advertise in college stu-
dent publications. It is counterintuitive for alcohol vendors to
spend their money on advertisements in newspapers with rela-
tively limited circulation, directed primarily at college stu-
dents, if they believed that these ads would not increase
demand by college students. The college newspapers fail to
provide evidence to specifically contradict this link or to rec-
4
The college newspapers also argue that, even if there is a link between
advertising bans and demand, § 5-20-40(B)(3)’s exemptions undermine its
effectiveness. This argument fails to take into account the actual scope of
§ 5-20-40(B)(3). Even with its exemptions, it proscribes without exception
all alcohol ads for non-restaurants. Therefore, in light of the full scope of
§ 5-20-40(B)(3), its limited exception for restaurants does not render it
futile.
10 EDUCATIONAL MEDIA CO. v. SWECKER
ognize the distinction between ads in mass media and those
in targeted local media.
The district court, therefore, erred by finding that this link
did not satisfy Central Hudson’s third prong. Even though
this link is established, we must still decide whether § 5-20-
40(B)(3) satisfies Central Hudson’s fourth prong.
D.
Under Central Hudson’s fourth prong, commercial speech
restrictions must be "narrowly drawn." Central Hudson, 447
U.S. at 565. The restrictions do not need to be the least
restrictive means possible, but they do need to have a "reason-
able fit with the government’s interest — a fit ‘that represents
not necessarily the single best disposition but one whose
scope is in proportion to the interest served.’" Musgrave, 553
F.3d at 305 (quoting Greater New Orleans Broad., 527 U.S.
at 188). Further, the state "must consider alternatives to regu-
lating speech to achieve its ends." Musgrave, 553 F.3d at 305.
Where a state has a comprehensive scheme to serve its inter-
est, limitations on commercial speech should "complement
non-speech alternatives," not serve as substitutes for them.
See id. at 306.
Here, § 5-20-40(B)(3) is narrowly tailored to serve the
Board’s interest of establishing a comprehensive scheme
attacking the problem of underage and dangerous drinking by
college students. Section 5-20-40(B)(3) is not a complete ban
on alcohol advertising in college newspapers. First, it only
prohibits certain types of alcohol advertisements. In fact, it
allows restaurants to inform readers about the presence and
type of alcohol they serve. Second, the restriction only applies
to "college student publications" — campus publications tar-
geted at students under twenty-one. It does not, on its face,
affect all possible student publications on campus. Therefore,
§ 5-20-40(B)(3) is sufficiently narrow.
EDUCATIONAL MEDIA CO. v. SWECKER 11
Further, the Board not only considered non-speech related
mechanisms to serve its interest, it actually implemented them
through education and enforcement programs. Section 5-20-
40(B)(3) complements these non-speech alternatives. Within
the Board’s multi-pronged attack on underage and abusive
drinking, § 5-20-40(B)(3) constitutes an additional prevention
mechanism. Without it, either education or enforcement
efforts would have to be increased, and given the Board’s lim-
ited resources, § 5-20-40(B)(3) is a cost-effective prevention
method that properly complements their non-speech related
efforts.
The college newspapers argue that § 5-20-40(B)(3) is not
the least restrictive means to serve the Board’s interest
because there are other, more effective ways to fight underage
and abusive drinking without restricting speech. However,
§ 5-20-40(B)(3) does "not necessarily [need to be] the single
best disposition[,] but one whose scope is in proportion to the
interest served." Musgrave, 553 F.3d at 305 (quoting Greater
New Orleans Broad., 527 U.S. at 188). The Board has shown
that § 5-20-40(B)(3) is an integral, reasonable fit to serve its
interests. The possible existence of more effective methods
does not undermine § 5-20-40(B)(3), especially in light of its
role in a comprehensive scheme to fight underage and abusive
drinking. The district court, therefore, erred by finding § 5-20-
40(B)(3) to be overly broad.
E.
On its face, the Board’s ban on alcoholic advertisements in
college student publications passes muster under Central
Hudson. The district court, therefore, erred in finding other-
wise.
III.
For the foregoing reasons, we reverse the district court’s
order granting summary judgment, vacate its permanent
12 EDUCATIONAL MEDIA CO. v. SWECKER
injunction, and remand for proceedings consistent with this
opinion.
REVERSED AND REMANDED
MOON, District Judge, dissenting:
I respectfully dissent.
Preliminarily, I observe that the regulation, properly con-
strued, does not apply to these newspapers. "[T]he parties
agree that a majority of the readership of the college newspa-
pers is over the age of twenty-one," ante at n. 1, and the
undisputed statistical evidence in the record supports that
agreement. More than half of the students at these universities
are over the age of twenty-one, as of course are most faculty
and staff. J.A. 464, 470-71, 477, 480. Given that a majority
of the readership is over the age of twenty-one, these college
newspapers are not "distributed or intended to be distributed
primarily to persons under 21 years of age," as required to be
subject to the strictures of 3 Va. Admin. Code § 5-20-
40(B)(3). This case could be resolved on that ground without
reaching the broader constitutional question. See Ashwander
v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) ("The Court will not pass upon a constitutional
question although properly presented by the record, if there is
also present some other ground upon which the case may be
disposed of."); see also Thompson v. Greene, 427 F.3d 263,
267 (4th Cir. 2005) (quoting Ashwander). However, both the
district court and the majority reach and address the constitu-
tional question, and so I do as well.1
1
The Board argued before the district court that "the regulation ‘is no
longer at issue’" because "the ABC Department has not enforced [the reg-
ulation] since the filing of the instant suit" and "the ABC Department
intends to implement a committee to examine the advertising regulations."
J.A. 82. The district court observed that "[t]he regulation . . . remains pro-
mulgated in the Virginia Administrative Code," and determined that "vol-
EDUCATIONAL MEDIA CO. v. SWECKER 13
On the merits of the constitutional issue, I think we should
affirm. To satisfy the requirement that the regulation "directly
advances the governmental interest asserted," Central Hudson
Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447
U.S. 557, 566 (1980), the government must demonstrate that
the challenged law "alleviate[s]" the cited harms "to a mate-
rial degree," Florida Bar v. Went For It, Inc., 515 U.S. 618,
624 (1995) (citation omitted); see also Greater New Orleans
Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999);
Pitt News v. Pappert, 379 F.3d 96, 107 (3rd Cir. 2004). "This
burden is not satisfied by mere speculation or conjecture."
Edenfield v. Fane, 507 U.S. 761, 770-71 (1993); Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001); Pitt News,
379 F.3d at 107. It is likewise not enough if a law "provides
only ineffective or remote support for the government’s pur-
poses," Edenfield, 507 U.S. at 770 (quoting Central Hudson,
447 U.S. at 564), or if there is "little chance" that the law will
advance the state’s goal, Lorillard, 533 U.S. at 566. See also
Pitt News, 379 F.3d at 107. Meeting this burden "is critical;
otherwise, ‘a State could with ease restrict commercial speech
in the service of other objectives that could not themselves
untary cessation of enforcement, even with the intent to reconsider the
merits of the regulation," did not render the regulation moot, given that the
Board "could elect to enforce [the regulation] at any time" and "any inten-
tion to repeal the regulation is, at best, speculative." Id. As the majority
notes, "regardless of whether § 5-20-40-(B)(3) applies to these college
newspapers, they have a sufficient credible fear of prosecution under this
regulation." Ante at n. 1. Nonetheless, it is my opinion that the better
approach would be to avoid the constitutional question, providing relief
"‘no more burdensome to the defendant than necessary to provide com-
plete relief to the plaintiffs.’" Virginia Soc’y for Human Life, Inc. v. FEC,
263 F.3d 379, 393 (4th Cir. 2001) (quoting Califano v. Yamasaki, 442
U.S. 682, 702 (1979)). Were we to hold that the regulation does not apply
to these newspapers, the state would be barred from further attempts to
enforce the regulation against them. See, e.g., State Water Control Bd. v.
Smithfield Foods, Inc., 261 Va. 209, 214-15 (2001) (final judgment on the
merits of a claim in federal court precludes the parties from further litiga-
tion on that claim in state court).
14 EDUCATIONAL MEDIA CO. v. SWECKER
justify a burden on commercial expression.’" Rubin v. Coors
Brewing Co., 514 U.S. 476, 487 (1995)(quoting Edenfield,
507 U.S. at 771); see also Pitt News, 379 F.3d at 107. In sum,
the burden is on the government, and the record here supports
the district court’s finding that the government failed to carry
its burden.2
I am persuaded by an opinion from the Third Circuit deal-
ing with similar facts. Pitt News v. Pappert (written by then-
Judge Alito) invalidated a Pennsylvania statute that banned
"advertisers from paying for the dissemination of ‘alcoholic
beverage advertising’ by communications media affiliated
with a university, college, or other ‘educational institution.’"3
379 F.3d at 101. Pitt News ruled that the Pennsylvania statute
"founder[ed] on the third and fourth prongs of the Central
Hudson test."4 Id. at 107. Finding that the third prong of the
Central Hudson test had not been met, the Third Circuit
observed that the Commonwealth of Pennsylvania had not
carried its burden of showing that the statute "had the effect
of greatly reducing the quantity of alcoholic beverage ads
viewed by underage and abusive drinkers on the Pitt campus.
. . ." Id. The court found that the Pennsylvania statute applied
2
The district court found the government’s evidence speculative. J.A.
92-96. For example, the district court observed that the Board’s expert "of-
fers no rationale or evidence, beyond conjecture, to support his claim as
to the singularity of a college publication. . . . [H]is insight ignores the
common sense reality that college students now live in a multimedia envi-
ronment . . . , all of which display uncensored alcoholic advertisements."
J.A. 95-96.
3
To be sure, the statute at issue in Pitt News did not contain the exemp-
tions allowed by § 5-20-40(B)(3); however, as I explain infra, those
exemptions constitute inconsistencies that, under a Central Hudson analy-
sis, further undermine the legitimacy of § 5-20-40(B)(3).
4
Pitt News also found the Pennsylvania statute "presumptively unconsti-
tutional because it targets a narrow segment of the media. . . ." 379 F.3d
at 105. Having broached the constitutional issue, I would embrace also the
alternative argument that the regulation unjustifiably targets a specific seg-
ment of the media.
EDUCATIONAL MEDIA CO. v. SWECKER 15
only to advertising in a very narrow sector of the
media (i.e., media associated with educational insti-
tutions), and the Commonwealth has not pointed to
any evidence that eliminating ads in this narrow sec-
tor will do any good. Even if Pitt students do not see
alcoholic beverage ads in The Pitt News, they will
still be exposed to a torrent of beer ads on television
and the radio, and they will still see alcoholic bever-
age ads in other publications, including the other free
weekly Pittsburgh papers that are displayed on cam-
pus together with The Pitt News. The suggestion that
the elimination of alcoholic beverage ads from The
Pitt News and other publications connected with the
University will slacken the demand for alcohol by
Pitt students is counterintuitive and unsupported by
any evidence that the Commonwealth has called to
our attention.
Id.Here, as in Pitt News, "the Commonwealth relies on noth-
ing more than ‘speculation’ and ‘conjecture.’" Id. at 107-08.
Under the third prong of a Central Hudson analysis, I dis-
agree with the finding that "the link between § 5-20-40(B)(3)
and decreasing demand for alcohol by college students [is]
amply supported by the record." Ante at 9. The evidence in
the record indicates such a link is speculative, at best.5 Nor am
5
The newspapers’ expert concluded that "no evidence exists to support
a substantial or material effect of a ban of alcohol advertising in college
newspapers. . . . Brand advertising only affects brand sales (or vice versa),
and market-wide demand for alcohol is not stimulated by advertising."
J.A. 486. And, although the Board’s expert reached the opposite conclu-
sion, an examination of his published articles and his deposition testimony
reveals that there is no evidence that the regulation directly and materially
advances the goal of diminishing underage or abusive drinking by college
students. Indeed, the Board’s expert has published the statement that
"[t]here is . . . very little empirical evidence that alcohol advertising has
any effect on actual alcohol consumption." J.A. 310-11, 326. The Board’s
16 EDUCATIONAL MEDIA CO. v. SWECKER
I persuaded by "the fact that alcohol vendors want to advertise
in college student publications" and that alcohol vendors
would not "spend their money on advertisements in" college
student publications "if they believed that these ads would not
increase demand by college students." Ante at 9. The Board’s
justification for the regulation is not to reduce general "de-
mand by college students," a significant number of whom are
of legal age to imbibe, but to reduce "underage and
abusive drinking among college students." Appellants’ Br. at
2 (emphasis added). The regulation not only impermissibly
infringes upon the constitutional rights of adults (with the
result of limiting the adult readership to receiving only speech
that the Commonwealth deems appropriate for persons under
the age of twenty-one), it also infringes upon the rights of
those readers who are not yet twenty-one, who nonetheless
have a protected interest in receiving truthful, non-misleading
information about a lawful product that they will soon have
the legal right to consume. And of course the advertisers have
the right to communicate such information.
As for the fourth prong under Central Hudson, I acknowl-
edge that § 5-20-40(B)(3) contains exemptions that permit
restaurants to advertise "the presence and type of alcohol they
serve." Ante at 10. Indeed, the poor "fit" between the regula-
tion and the Commonwealth’s asserted goal is belied by what
expert has also acknowledged that a ban on advertising in one medium
generally results in greater advertising saturation in other media or forms
of marketing. J.A. 343, 350.
Moreover, as the district court recognized, the regulation has been on
the books, altered over time to reflect changes in the legal drinking age,
since the repeal of Prohibition. J.A. 84, 93. Yet, as the Commonwealth
implicitly concedes, underage and abusive drinking by college students
has not diminished since the enactment of this regulation; rather, the evi-
dence demonstrates that the problem has grown and exacerbated over
time, despite the decades-old restriction. J.A. 93. This suggests to me that
the regulation does not materially advance the Commonwealth’s purported
interest in curbing underage or excessive drinking. J.A. 93-94.
EDUCATIONAL MEDIA CO. v. SWECKER 17
§ 5-20-40(B)(3) permits. Lorillard, 533 U.S. at 555; Greater
New Orleans, 527 U.S. at 188; West Virginia Ass’n of Club
Owners and Fraternal Serv. Inc. v. Musgrave, 553 F.3d 292,
305 (4th Cir. 2009); Pitt News, 379 F.3d at 108. Although the
regulation prohibits advertising of prices, brands of alcohol,
and names of specialty drinks, it allows promotions of "beer,"
"wine," and "mixed beverages" to appear in the very same
newspapers that are allegedly "targeted at students under
twenty-one." Ante at 10. It is inconsistent to maintain that a
regulation that permits advertisements for "beer night" or
"mixed drink night" "in reference to a dining establishment"
forms a reasonable fit with the goal of curbing underage or
excessive drinking merely because it forbids advertisements
for keg delivery, "mojito night," or the "Blacksburg Wine Festi-
val."6 J.A. 73, 74. Indeed, the Supreme Court has pointed to
this sort of internal inconsistency in striking down advertising
regulations under the third prong of a Central Hudson analy-
sis. See Greater New Orleans, 527 U.S. at 190 (observing that
a ban on broadcasting lottery information was "so pierced by
exemptions and inconsistencies that the Government cannot
hope to exonerate it."); Coors Brewing, 514 U.S. at 490 (the
government’s "anecdotal evidence and educated guesses" do
not "overcome the irrationality of the regulatory scheme,"
which prohibited alcohol content information in labeling but
not in advertising). An attempt to rationalize these inconsis-
6
Nor does the regulation form a reasonable fit to its goal insofar as it
prohibits advertisements for national brands, considering the heavy pro-
motion of these products in other media, including print media, available
to college students regardless of whether they are of legal age to drink.
According to the Board, however, "the alcohol industry" restricts "adver-
tisement of alcoholic beverages to media where at least 70% of the audi-
ence is reasonably expected to be over the age of 21." Appellants’ Reply
Br. at 10; J.A. 359. The Board thus contends that its regulation "is not
about brand advertising," but "is about bars and grocery stores, drink spe-
cials and discounts, intended to attract purchasers - not to a particular
brand, but to a particular outlet or venue, or even just off campus - to
locations where alcohol will be sold." Id. (emphasis added). Yet the
exemptions in the regulation permit a "dining establishment," i.e., a "par-
ticular outlet or venue," to promote "beer night" or "mixed drink night."
18 EDUCATIONAL MEDIA CO. v. SWECKER
tencies, defending them on the ground that the regulation "is
not a complete ban on alcohol advertising in college newspa-
pers," ante at 10 (emphasis added), may state an accurate
observation; however, the statement is wholly unresponsive to
the requirements of Central Hudson. It fails to disguise the
fact that there is no empirical support for banning one type of
advertisement but not the other.
I disagree with the finding that § 5-20-40(B)(3) is "suffi-
ciently narrow" because it applies to "campus publications
targeted at students under twenty-one" and "does not, on its
face, affect all possible student publications on campus." Ante
at 10. While the latter observation may be true, the former is
not. There is no evidence that these newspapers are "targeted
at students under twenty-one."7 The record reveals that the
majority of the readership of these newspapers is of legal age
to drink. Accordingly, under the fourth step of the Central
7
As I have already observed, the parties agree that a majority of the
readership of the college newspapers is over the age of twenty-one, and
the undisputed statistical evidence in the record supports that agreement.
J.A. 464, 470-71, 477, 480. A majority of the students at these universities
are over the age of twenty-one, as of course are most faculty and staff. Id.
Appellants argue that "[t]he intended audiences of the UVA and Va.
Tech student newspapers include a relatively large population of graduate
and professional students," but that, "[w]here the student population of an
institution is comprised only of undergraduates, it is likely that its student
newspaper’s intended audience is comprised primarily of undergraduate
students" who are under age twenty-one. Appellants’ Br. at 23. Although
in most circumstances a facial challenge to the constitutionality of a law
can succeed only by establishing that there is no set of circumstances
under which the law would be valid, i.e., that the law is unconstitutional
in all of its applications, Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 449-51 (2008), facial changes "in the
First Amendment context" may succeed when a "substantial number" of
the law’s applications are unconstitutional, id. at 450, n. 6 (citations omit-
ted). Additionally, "[i]n determining whether a law is facially invalid, we
must be careful not to go beyond the statute’s facial requirements and
speculate about ‘hypothetical’ or ‘imaginary’ cases." Id. at 449-50 (cita-
tion omitted).
EDUCATIONAL MEDIA CO. v. SWECKER 19
Hudson test, the regulation here, like the Pennsylvania statute
in Pitt News, is not "a means narrowly tailored to achieve the
desired objective," Lorillard, 533 U.S. at 555 (quotations
omitted), given that it "is both severely over- and under-
inclusive," Pitt News, 379 F.3d at 108 (observing that "more
than 67% of Pitt students and more than 75% of the total Uni-
versity population is over the legal drinking age").
True, the regulation need not be "the single best disposi-
tion," but only "one whose scope is in proportion to the inter-
est served." Musgrave, 553 F.3d at 305. However, a
commercial speech restriction must be "‘a necessary as
opposed to merely convenient means of achieving’" the Com-
monwealth’s interests, and "the costs and benefits associated
with" the restriction must be "‘carefully calculated.’" Mus-
grave, 553 F.3d at 305 (citations omitted; emphasis added).
Here, the scope of § 5-20-40(B)(3), and its impact on pro-
tected commercial speech, are far out of proportion to the
interest served, and the record indicates that "the Common-
wealth can seek to combat underage and abusive drinking by
other means that are far more direct and that do not affect the
First Amendment."8 Pitt News, 379 F.3d at 108. In short, the
8
For example, the Board’s own expert has acknowledged the following
more direct means: increased taxation on alcohol, which has been empiri-
cally verified and quantified as a means to combat underage and binge
drinking ("[i]ncreased taxation is more effective than advertising bans")
(J.A. 21, 319); and counter-advertising to correct students’ perceptions
about their peers’ drinking habits and provide facts as to the dangers of
underage and excessive drinking ("increased counteradvertising, rather
than new advertising bans, appears to be the better choice for public pol-
icy") (J.A. 351). See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,
507 (1996) (plurality opinion of Stevens, J., joined by Kennedy, Souter,
and Ginsburg) ("As the State’s own expert conceded, higher prices can be
maintained either by direct regulation or by increased taxation."); id. at
530 (O’Connor, J., concurring, joined by Chief Justice Rehnquist and Jus-
tices Breyer and Souter) ("Rhode Island’s own expert conceded that the
objective of lowering consumption of alcohol by banning price advertising
could be accomplished by establishing minimum prices and/or by increas-
ing sales taxes on alcoholic beverages.") (internal quotation marks and
20 EDUCATIONAL MEDIA CO. v. SWECKER
advertising ban here offers "only ineffective or remote sup-
port," not a direct means, to combat underage and abusive
drinking. Central Hudson, 447 U.S. at 564; Edenfield, 507
U.S. at 770; Pitt News, 379 F.3d at 107.
In my view, the regulation cannot withstand constitutional
scrutiny under Central Hudson. It is objectionable that the
Commonwealth’s rationale for the regulation applies only to
underage and abusive drinking, while the regulation itself
applies much more broadly. In free speech cases, it is danger-
ous and unwise to sustain broad regulations for narrow rea-
sons. Central Hudson confirms this reasoning, recognizing
that a regulation restricting commercial speech must be "‘nar-
rowly drawn.’" 447 U.S. at 565 (citation omitted). Section 5-
20-40(B)(3) fails to "directly advance[ ] the governmental
interest asserted" and is "more extensive than is necessary to
serve that interest." Central Hudson, 447 U.S. at 566. I would
therefore affirm the judgment below.
citation omitted). Indeed, the Board uses the following direct means: pub-
lishing "educational pamphlets on the dangers of underage and binge
drinking on college campuses, targeted at both underage students and their
parents"; enforcing "its regulations by carefully allocating its limited num-
ber of officers to target ‘big events that are likely to gather college stu-
dents’"; and giving "grants to colleges and college communities to
supplement these targeted efforts." Ante at 4.