Lead Opinion
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
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 § 5-2(M0(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.,
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.
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.
II.
The Board argues that the district court erred by determining that § 5-20-40(B)(3) facially violates the First Amendment.
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,
“[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,
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
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,
Further, because this is a facial, preenforcement challenge, “[w]e assume that the speech is not misleading because ... [the Board] has not provided evidence that the speech is actually misleading, and there is no evidence that the advertising restrictions were enacted to prevent the dissemination of misleading information.” Musgrave,
B.
“Next, we ask whether the asserted governmental. interest is substantial.” Central Hudson,
C.
We next consider whether the advertising ban “directly and materially” advances the government’s substantial interest. Musgrave,
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 college students. The Board cites judicial decisions recognizing this general link and argues that, here, this link is extraordinarily strong because college newspapers, a targeted form of media bearing the name of the college, attract more attention among college stu
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,
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,
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
Further, the Board not only considered non-speech related mechanisms to serve its interest, it actually implemented them through education and enforcement programs. Section 5-2CM0(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 limited 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,
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 otherwise.
III.
For the foregoing reasons, we reverse the district court’s order granting summary judgment, vacate its permanent injunction, and remand for proceedings consistent with this opinion.
REVERSED AND REMANDED
Notes
. The district court determined that both college newspapers were “college 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 newspapers need only demonstrate " 'a credible threat of prosecution’ under the statute or regulation.” Virginia Soc’y for Human Life, Inc. v. FEC,
. 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,
. The Board also argues that the district court erred because it entertained a facial challenge to § 5-20-40(B)(3). Although there is judicial disfavor of facial challenges, there is no proscription on such challenges. See Washington State Grange v. Washington State Republican Party,
. The appeal before us is based solely on a facial challenge to § 5-20-40(B)(3). The dissent, like the district court, blurs the distinction between a facial and an as-applied challenge. For example, both the dissent and the district court opinion rely on Pitt News which is an as-applied challenge.
. 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.
Dissenting Opinion
dissenting:
I respectfully dissent.
Preliminarily, I observe that the regulation, properly construed, does not apply to these newspapers. “[T]he parties agree that a majority of the readership of the college newspapers 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.,
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,
I am persuaded by an opinion from the Third Circuit dealing with similar facts.
only to advertising in a very narrow sector of the media (i.e., media associated with educational institutions), and the Commonwealth has not pointed to any evidence that eliminating ads in this narrow sector 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 beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus 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 nothing more than ‘speculation’ and ‘conjecture.’ ” Id. at 107-08. Under the third prong of a Central Hudson analysis, I disagree 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 590. The evidence in the record indicates such a link is speculative, at best.
As for the fourth prong under Central Hudson, I acknowledge that § 5-20-40(B)(3) contains exemptions that permit restaurants to advertise “the presence and type of alcohol they serve.” Ante at 591. Indeed, the poor “fit” between the regulation and the Commonwealth’s asserted goal is belied by what § 5-20-40(B)(3) permits. Lorillard,
I disagree with the finding that § 5-20-40(B)(3) is “sufficiently 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 591. 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.”
True, the regulation need not be “the single best disposition,” but only “one whose scope is in proportion to the interest served.” Musgrave,
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 dangerous and unwise to sustain broad regulations for narrow reasons. Central Hudson confirms this reasoning, recognizing that a regulation restricting commercial speech must be “ ‘narrowly drawn.’ ”
. The Board argued before the district court that "the regulation 'is no longer at issue' " because "the ABC Department has not enforced [the regulation] 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 promulgated in the Virginia Administrative Code,” and determined that "voluntary 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 intention 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 complete relief to the plaintiffs.' ” Virginia Soc’y for Human Life, Inc. v. FEC,
. The district court found the government's evidence speculative. J.A. 92-96. For example, the district court observed that the Board’s expert "offers 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 environment ..., all of which display uncensored alcoholic advertisements.” J.A. 95-96.
. To be sure, the statute at issue in Pitt News did not contain the exemptions allowed by § 5-20-40(B)(3); however, as I explain infra, those exemptions constitute inconsistencies that, under a Central Hudson analysis, further undermine the legitimacy of § 5-20-40(B)(3).
. Pitt News also found the Pennsylvania statute "presumptively unconstitutional because it targets a narrow segment of the media....”
. 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 conclusion, 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 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
. Nor does the regulation form a reasonable fit to its goal insofar as1 it prohibits advertisements for national brands, considering the heavy promotion 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 “advertisement of alcoholic beverages to media where at least 70% of the audience 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 specials 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 “particular outlet or venue,” to promote “beer night” or "mixed drink night."
. 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,
. For example, the Board’s own expert has acknowledged the following more direct means: increased taxation on alcohol, which has been empirically verified and quantified as a means to combat underage and binge drinking (‘'[¡Increased 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 policy”) (J.A. 351). See 44 Liquormart, Inc. v. Rhode Island,