Victory for Free Speech: Fourth Circuit Allows Alcohol Ads in Two Virginia University Newspapers

By September 26, 2013

Last October, FIRE’s Joe Cohn brought you news regarding Educational Media Company at Virginia Tech v. Swecker, in which Virginia Tech’s The Collegiate Times (owned by the Educational Media Company) and the University of Virginia’s The Cavalier Daily challenged the constitutionality of the Virginia Department of Alcoholic Beverage Control’s ban on alcohol advertisements in college student publications. The news was bad then—the United States District Court for the Eastern District of Virginia ruled (PDF) that the ban was constitutional because it served what the court identified as a substantial governmental interest in reducing underage and binge drinking on campus.

However, the news got a lot better yesterday. In a victory for free speech, the U.S. Court of Appeals for the Fourth Circuit yesterday agreed with the papers’ contentions that the ban unconstitutionally restricts the newspaper staffs’ editorial decisions and is not an effective strategy to curtail underage drinking, particularly considering the readership of these papers.

Because the ban involves commercial speech, the appellate court analyzed its constitutionality under the test set forth by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980)—a less strict standard than that applied to restrictions on non-commercial speech. The Fourth Circuit wrote:

Under Central Hudson, a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest. Central Hudson, 447 U.S. at 566.

Applying these factors, the court found that “because the advertising ban is not appropriately tailored to Virginia’s stated aim,” it was not constitutional as applied to the two plaintiff newspapers. Although all parties conceded that Virginia’s goal of reducing underage drinking is a substantial governmental interest, the court found it significant that the majority of Cavalier Daily and Collegiate Times readers are over the age of 21. Because of this, applying the regulation to these newspapers “prohibits large numbers of adults … from receiving truthful information about a product they are legally allowed to consume.” Such a result indicates that the regulation is not narrowly tailored to achieve the government’s stated goal and thus fails the fourth prong of the Central Hudson test and may not be applied to these publications under the First Amendment.

In a separate opinion, the ban was determined to be constitutional on its face. This means it may still be applied to other college papers, particularly at schools where the majority of readers are under the age of 21. Yesterday’s decision, however, remains a significant development for The Collegiate Times and The Cavalier Daily and is likely to result in higher protections for student press at many Virginia schools.

The Fourth Circuit opinion also cites Pitt News v. Pappert, 379 F.3d 96 (3d Cir. 2004), in which a similar regulation by the Pennsylvania Liquor Control Board was invalidated in light of the mostly-legal readership of the University of Pittsburgh’s student paper.

As Allie Grasgreen notes in an article for Inside Higher Ed today, Virginia’s regulation has had significant negative effects on student newspapers. Student papers survive largely on advertising revenue, and disallowing ads for alcohol greatly hindered newspapers’ abilities to raise funds for publication. Additionally, Cavalier Daily editor-in-chief Kaz Komolafe said production was often delayed by uncertainty about whether certain content would be allowed under the regulation:

Sometimes, it was unclear whether an offer would be permissible; for instance, an ad for a concert sponsor in part by a particular brand of beer, whose small logo might appear somewhere.

“If you’re on the phone with an advertiser, you don’t want to say, let me go check with my lawyer for three days,” she said. “And by then the event’s already happened.”

As we’ve often emphasized here on The Torch, allowing timely speech concerning current events is a critical component of free expression, and this is especially true in the case of student-run periodicals.

The Student Press Law Center reported yesterday that Virginia’s Attorney General’s Office was still considering whether to appeal the decision. In the meantime, plaintiffs, amici, and advocates for a free student press—including FIRE—are praising the decision (PDF) as an important victory.