Educational Media Co. at Virginia Tech, Inc. v. Swecker, 041310 FED4, 08-1798

Docket Nº:08-1798
Opinion Judge:SHEDD, Circuit Judge:
Party Name: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 Operat
Attorney:Catherine Crooks Hill, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir
Judge Panel: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. MOON, District Judge, dissenting:
Case Date:April 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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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 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.

No. 08-1798

United States Court of Appeals, Fourth Circuit

April 13, 2010

Argued: October 29, 2009

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)

COUNSEL

ARGUED:

Catherine Crooks Hill, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir­ginia, 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, Charlottes­ville, Virginia, for the Thomas Jefferson Center for the Protection of Free Expression, Amicus Supporting Appellees.

Katherine A. Fallow, Carrie F. Apfel, Garrett A. Levin, JENNER & BLOCK, LLP, Washington, D.C.; Frank D. LoMonte, Michael C. Hiestand, STUDENT PRESS LAW CENTER, Arlington, Virginia, for Student Press Law Center and Col­lege Newspaper Business and Advertising Managers, Amici Supporting Appellees.

ORDER

The court amends its, as follows: On page 18, footnote 7, second paragraph, line 11, the word "changes" is corrected to read "challenges."

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.

OPINION

SHEDD, Circuit Judge:

The Commonwealth of Virginia, through its Alcoholic Beverage Control Board ("the Board"), regulates advertise­ments 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 sum­mary judgment, declared both provisions facially unconstitu­tional, 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 distri­bution of alcohol within the Commonwealth of Virginia. See 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 Com­monwealth. For example, the Board prohibits various types of advertisements for alcohol in any "college student publica­tion," which it defines as any college or university publication that is: (1) prepared, edited, or published primarily by its stu­dents; (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 advertise­ments 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 edu­cational pamphlets on the dangers of underage and binge drinking on college campuses, targeted at both underage stu­dents and their parents. Further, the Board enforces its regula­tions 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 Vir­ginia Polytechnic Institute and State University, and The Cav­alier Daily is a student-run newspaper at the University of Virginia. The newspapers rely on advertisement revenue to 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 col­lege newspapers mounted both facial and as-applied chal­lenges 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.

II.

The Board argues that the district court erred by determin­ing that § 5-20-40(B)(3) facially violates the First Amendment.3Both parties agree that to determine whether a regulatory bur­den 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 regula­tion 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 chal­lenge). 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 commer­cial speech may be resolved as a question of law when the government meets the burden placed on it by Central Hud­son." 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 reference to the challenged regulation and its legislative history. Id. at 1323. Therefore, a court considers the facial constitu­tionality 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 Amend­ment 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 regu­lates 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 commer­cial 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 §...

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