Educational Media Co. at Virginia Tech, Inc. v. Insley
731 F.3d 291
4th Cir.2013Background
- Virginia ABC regulation (3 Va. Admin. Code § 5-20-40(A)(2)) bans alcoholic-beverage advertisements in college student publications except limited dining-establishment references.
- Appellants Educational Media (Virginia Tech) and The Cavalier Daily (UVA) sued, alleging First Amendment violations; district court initially found the rule facially unconstitutional but this court reversed and remanded.
- On remand the district court granted summary judgment to ABC; the newspapers appealed an as-applied challenge.
- The record includes conflicting expert economic testimony on whether banning alcohol ads in college papers reduces student drinking; ABC’s expert claimed college papers are a uniquely targeted forum, plaintiffs’ expert said advertising primarily builds brand loyalty and other media would offset any ban.
- The newspapers demonstrated that a majority of their readerships are age 21 or older.
- The Fourth Circuit majority held the ban violates the First Amendment as applied to these college newspapers because it is not narrowly tailored under Central Hudson; Judge Shedd dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether strict (heightened) scrutiny applies because the rule is content- and speaker-based | The ban targets a narrow speaker class (college publications) and is content-based; Sorrell dictates heightened scrutiny | Regulation targets commercial speech; Central Hudson intermediate scrutiny applies | Court avoided deciding heightened-scrutiny question and proceeded under Central Hudson; outcome the same under intermediate review |
| Whether the regulation satisfies Central Hudson prongs 1–2 (lawful, substantial interest) | Ads concern lawful activity; substantial state interest in reducing underage/abusive drinking | Same | Prongs 1 and 2 satisfied |
| Whether the regulation directly and materially advances the government interest (Central Hudson prong 3) | ABC: reducing campus ads will reduce student drinking; college papers are uniquely targeted so ban is effective | Newspapers: advertising bans don’t reduce overall demand; other media exposures offset any effect | Court concluded prong 3 is satisfied (relying on prior panel decision that advertising reduction likely reduces demand and that college publications are a distinct forum) |
| Whether the regulation is no more extensive than necessary (Central Hudson prong 4 — tailoring) | ABC: ban is a reasonable part of a multifaceted approach and does not prohibit all alcohol advertising | Newspapers: majority of readers are adults; ban prevents truthful information to lawful consumers and is overbroad | Held for newspapers: as-applied to these papers the ban fails prong 4 because it prevents adults (majority of readers) from receiving truthful, non-misleading commercial speech |
Key Cases Cited
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980) (established four-part test for commercial speech regulation)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (content- and speaker-based commercial-speech restrictions merit heightened scrutiny)
- Edenfield v. Fane, 507 U.S. 761 (1993) (government must show restriction directly advances interest and not be speculative)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (invalidating advertising restriction as not narrowly tailored; adults’ right to truthful information considered)
- 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (First Amendment skepticism toward laws that keep people in the dark for their own good)
- United States v. Edge Broad., 509 U.S. 418 (1993) (analysis of prong 3 may consider the regulation’s general application beyond a single party)
- Pitt News v. Pappert, 379 F.3d 96 (3d Cir. 2004) (invalidated similar ban as-applied where a majority of readers were of legal drinking age)
- Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583 (4th Cir. 2010) (prior panel decision addressing facial challenge and prong 3 reasoning relied upon on remand)