Educ. Media Co. v. Insley, 12–2183.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: THACKER
• Citation: 731 F.3d 291
• Parties: 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.
• Docket Number: No. 12–2183.,12–2183.
• Decision Date: 25 September 2013

731 F.3d 291

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.

No. 12–2183.

United States Court of Appeals,
Fourth Circuit.

Argued: May 14, 2013.
Decided: Sept. 25, 2013.

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ARGUED:Rebecca K. Glenberg, American Civil Liberties Union of Virginia Foundation, Inc., Richmond, Virginia, for

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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.

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 dissenting opinion.

THACKER, Circuit Judge:

The Virginia Alcoholic Beverage Control Board (the “ABC”) prohibits college student newspapers from printing alcohol advertisements. Appellants Educational Media and The Cavalier Daily (hereinafter “Appellants” or the “College Newspapers”) are non-profit corporations that own student newspapers at Virginia Polytechnic Institute and State University (“Virginia Tech”) and the University of Virginia (“UVA”), respectively. 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 that the challenged regulation is a constitutionally appropriate restriction of commercial speech given Virginia's substantial interest in combatting underage and abusive drinking on college campuses. However, in this as-applied challenge, because the advertising ban is not appropriately tailored to Virginia's stated aim, we reverse the judgment of the district court.

I.

Virginia precludes college student newspapers from printing alcohol advertisements. See3 Va. Admin. Code § 5–20–40(A)(2) (2010) (the “challenged regulation”). The challenged regulation provides:

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

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Virginia, contending that the challenged regulation was violative of the First Amendment. The College Newspapers made three distinct arguments. First, they argued that the challenged regulation impermissibly discriminates against a narrow segment of the media—college student newspapers—thus subjecting the regulation to the exacting strict scrutiny standard, which, they argued, it cannot withstand. 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 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, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Finally, the College Newspapers argued that, even if the challenged regulation could withstand a facial challenge under Central Hudson, the regulation fails 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 to him, this assumption only holds true where a reasonable substitute for the regulated forum exists. 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 is “nothing else that can replace that kind of targeted media that's specifically oriented towards and reaches college students.” J.A. 313.² 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 contrast, the College Newspapers offered the testimony of Dr. Jon P. Nelson, an economics professor at Pennsylvania State University. Based on his research, Dr. Nelson testified that “[a]dvertising bans, 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 loyalty[,]” as opposed to expanding overall market demand. Id. 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.

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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 has effectively reduced levels of alcohol consumption.” 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. Specifically, the Collegiate Times—the Virginia Tech 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 Daily has a daily readership of about 10,000 readers. As of January 1, 2007, persons age 21 or over comprised approximately 64% of UVA's total student population.

B.

In 2008, following the close of discovery, the district court granted the College Newspapers' motion for summary judgment, declaring that the challenged regulation was facially unconstitutional under Central Hudson. Having determined that the regulation failed Central Hudson on its face, the district court declined to reach the 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 the underlying district court opinion was premised solely on the College Newspapers' facial 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...