Professional Documents
Culture Documents
No. 12-2183
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)
Argued:
Decided:
Virginia
prohibits
Alcoholic
college
alcohol advertisements.
Cavalier
Daily
Newspapers)
newspapers
University
student
Control
newspapers
(the
printing
or
non-profit
corporations
that
Virginia
(Virginia
Board
from
(hereinafter
are
at
Beverage
Polytechnic
Tech)
(UVA), respectively.
and
the
the
College
own
Institute
University
student
and
of
State
Virginia
the
ABC,
concluding
constitutionally
that
appropriate
the
challenged
restriction
of
regulation
commercial
is
speech
drinking
on
challenge,
college
campuses.
because
the
However,
advertising
in
ban
this
as-
is
not
precludes
college
(the
challenged
regulation provides:
3
student
newspapers
from
The
challenged
District
of
Virginia,
contending
that
the
the
against
challenged
narrow
regulation
segment
of
the
The College
impermissibly
media
challenged
--
discriminates
college
student
scrutiny
withstand.
standard,
which,
they
argued,
it
cannot
See
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447
U.S. 557 (1980).
even
if
the
challenge
challenged
under
Central
regulation
Hudson,
the
could
withstand
regulation
fails
facial
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.
to
him,
this
substitute
assumption
for
the
only
holds
true
where
regulated
forum
exists.
Dr.
Saffer testified that this assumption does not hold true in the
context
of
college
student
newspapers,
because
[a]
college
specifically
oriented
J.A. 313. 2
students.
towards
and
reaches
college
actually
do
have
significant
effect
on
market
demand
of
Pennsylvania
Nelson
contrast,
Dr.
Jon
State
testified
the
P.
College
Nelson,
University.
that
Newspapers
offered
economics
professor
an
Based
on
[a]dvertising
his
bans,
the
at
research,
Dr.
partial
or
J.A. 484.
brand
market demand.
loyalty[,]
Id.
as
opposed
to
expanding
overall
Id. at 487.
bans
in
college
student
publications
actually
Moreover,
publications,
other
methods
of
combatting
alcohol
as
the
district
court
noted,
Dr.
Saffer
also
counter-advertising
alcohol consumption.
has
effectively
reduced
levels
of
J.A. 586-87.
Virginia
Tech
student
newspaper
owned
by
Appellant
constituted
roughly
60%
of
the
Collegiate
Times
total
Similarly,
the
Cavalier
Daily
has
daily
As of January 1, 2007,
persons age
21
or
over
comprised
approximately
64%
of
UVAs
2008,
court
following
granted
the
the
close
College
of
discovery,
Newspapers
motion
the
for
unconstitutional
determined
face,
that
the
the
under
regulation
district
court
Central
failed
declined
Hudson.
Central
to
Having
Hudson
reach
the
on
its
College
Because
premised
solely
the
on
underlying
the
College
district
court
Newspapers
opinion
facial
was
challenge,
See
Swecker, 602 F.3d at 587 n.2. (The district court did not reach
the college newspapers alternative arguments . . . .
Though
consideration
of
the
two
remaining
challenges:
(1)
the
subject
to,
and
fails,
strict
scrutiny
and
(2)
the
College
parties
without
the
then
filed
supplementing
district
court
cross
the
motions
record.
granted
the
On
ABCs
for
summary
September
motion
7,
and,
In so
that
strict
scrutiny
applied,
opting
instead
to
de
novo,
judgment
We
district
viewing
court
the
order
evidence
in
granting
the
summary
light
most
reviewing
speech,
[i]t
challenge
is
well
9
to
established
restriction
that
the
on
party
commercial
there
is
speech
is
protected
commonsense
by
the
distinction
First
between
Cent. Hudson
Gas & Elec. Corp. v. Pub. Serv. Commn of New York, 447 U.S.
557, 562 (1980).
lesser
protection
constitutionally
to
commercial
guaranteed
speech
expression.
than
Id.
to
at
other
562-63.
must
withstand
intermediate
scrutiny
in
order
to
concurring); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623
(1995).
The
parties
agree
that
the
challenged
regulation
not
apply.
Instead,
they
argue
that
the
challenged
publications,
and
subjecting
that
segment
to
heightened
regulation.
In so arguing, the College Newspapers primarily rely
on Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).
Sorrell,
the
prevented
Supreme
Court
pharmacies
from
invalidated
revealing
Vermont
In
law
that
prescriber-identifying
Vermont argued that this
by
Supreme
only
identifying
Court
invalidated
prohibiting
information
for
the
the
ban,
disclosure
marketing
of
concluding
prescriber-
purposes,
Vermont
had
heightened
scrutiny
Amendment challenge.
First
Amendment
government
order
to
survive
First
requires
creates
in
heightened
regulation
scrutiny
of
whenever
the
because
of
speech
Commercial
11
speech
is
no
exception.)
citations
omitted).
Vermonts
ban
could
(internal
However,
not
the
even
quotation
Court
withstand
also
marks
and
concluded
that
intermediate
scrutiny
heightened
striking
alone.
scrutiny,
Id.
at
2667
([T]he
the
ban
outcome
is
under
the
Central
same
Hudson
whether
the
regulation
College
regulation
here
discrimination.
Newspapers
and
their
at
in
Sorrell,
involves
Based
issue
both
on
amici
content-based
this
alleged
argue
the
and
that,
challenged
speaker-based
discrimination,
the
However,
12
B.
Next,
we
consider
whether
the
challenged
regulation
not
misleading;
substantial
advances
extensive
(2)
government
that
than
the
regulation
interest;
interest;
and
necessary
to
is
supported
(3)
the
the
regulation
(4)
serve
the
regulation
is
governments
by
directly
not
more
interest.
Id.
In an as-
challenged
plaintiffs. 5
regulation
with
regard
to
its
impact
on
the
Id.
The difference between a facial challenge and an asapplied challenge lies in the scope of the constitutional
inquiry. Under a facial challenge, a plaintiff may sustain its
burden in one of two ways.
First, a plaintiff asserting a
facial challenge may demonstrate that no set of circumstances
exists under which the law would be valid, or that the law lacks
any plainly legitimate sweep.
Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor and City Council of Balt., --F.3d ---, 2013 WL 3336884, at *11 (4th Cir. July 3, 2013)(en
banc)(alterations omitted)(quoting United States v. Stevens, 559
U.S. 460, 130 S. Ct. 1577, 1587 (2010)).
Second, a plaintiff
asserting a facial challenge may also prevail if he or she
show[s] that the law is overbroad because a substantial number
(Continued)
13
conclude
Applying
Central
that
district
the
Hudson
to
court
the
erred
facts
in
at
hand,
we
holding
that,
as
to
the
the
permissible.
College
First
Rather,
Newspapers,
Amendment.
We
the
we
conclude
challenged
address
each
that,
as
regulation
of
the
four
Hudson,
lawful
activity
Specifically,
i.e.
the
and
whether
is
the
not
challenged
regulated
speech
misleading,
regulation
is
concerns
satisfied.
regulates
lawful
consumption.
See
Swecker,
602
F.3d
at
589.
14
Additionally, the ABC has not presented any evidence that the
advertisements
implicated
by
this
regulation
are
misleading.
we
ask
interest is substantial.
with
the
first
prong,
whether
the
asserted
governmental
parties
are
in
agreement
As
that
on
governmental
college
interest.
campuses
See,
represents
Swecker,
602
substantial
F.3d
at
589.
the
challenged
regulation
directly
advances
the
to
sustain
restriction
on
commercial
speech
must
demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree.
Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).
To be sure,
empirical
data
accompanied
information[.]
555
(2001)
Supreme
by
surfeit
of
background
(internal
Court
has
quotation
marks
permitted
omitted).
litigants
to
Rather,
justify
the
speech
to
justify
restrictions
based
the
state
efficacy,
little
and
chance
goal[.]
to
a
establish
regulation
that
the
solely
on
history,
commercial
cannot
be
restriction
speech
sustained
will
regulations
if
advance
there
the
is
States
omitted).
In
Swecker,
we
concluded
that
the
challenged
campuses
will
necessarily
result
(Though
alone
is
situation,
the
correlation
insufficient
here
publications
it
play
is
an
to
between
justify
16
advertising
because
role
decrease
in
advertising
strengthened
inimitable
in
on
and
bans
in
college
campus.
demand
every
student
(internal
citations
omitted)).
Additionally,
we
concluded
that
the
Id.
(emphasis in original).
b.
On
remand
following
Swecker,
the
district
court
prong.
We
agree.
While
it
is
true,
as
the
College
present
action
involves
an
as-applied
challenge,
this
In analyzing the
statute under Central Hudsons third prong, the Court noted that
it was readily apparent that this question cannot be answered
by limiting the inquiry to whether the governmental interest is
directly
advanced
as
applied
to
17
single
person
or
entity.
to
all
other
radio
and
television
stations
in
North
Id.
reviewing
court
to
take
the
challengers
individual
particular
restriction,
that
general
practice
is
prong.
challenged
Accordingly,
regulation
Sweckers
directly
and
conclusion
materially
that
the
advances
the
(This
the
is
not
to
say
that
validity
of
the
statutes
party
regulation
defending
the
must
demonstrate
narrow
Greater
New Orleans Broad. Assn, Inc. v. United States, 527 U.S. 173,
188 (1999).
The ABC argues that the challenged regulation does not
fail under this fourth prong because it is reasonably tailored
to
the
stated
consumption.
aim
of
reducing
underage
and
abusive
alcohol
one
facet
of
its
multi-faceted
approach
to
combat
the
the
governments
consumption
by
college
stated
aim:
students
older.
19
who
reducing
are
21
abusive
years
of
alcohol
age
or
We disagree.
applied
challenge,
based
on
the
application
of
[the
(en
banc),
the
challenged
regulation
fails
under
the
adults
truthful
who
are
21
information
years
about
of
age
or
older
product
that
Supreme
Court
from
they
receiving
are
legally
allowed to consume.
In
Massachusetts
Lorillard,
statute
the
prohibiting
tobacco
struck
advertising
down
within
retailers
and
manufacturers
have
an
interest
in
564.
Here, a majority of the College Newspapers readers
are
age
21
or
older.
Specifically,
20
roughly
60%
of
the
Collegiate
Timess
readership
is
age
21
or
older
and
the
protected
interest
in
non-misleading
alcohol
the
challenged
regulation
is
unconstitutionally
overbroad.
In Pitt News v. Pappert, the Third Circuit reached a
similar conclusion on similar facts.
2004).
regulation
prohibiting
university
publications.
Pittsburghs
student
alcohol
The
advertisements
Pitt
newspaper,
News,
brought
an
in
the
college
or
University
of
action
under
42
Lorillard,
the
Supreme
Court
held
that
restriction
on
of
the
importance
of
this
interest,
However,
the
ABCs
Sorrell,
on
the
Vermont
attempted
commercial
to
disclosure
justify
of
its
prescriber-
by
pharmaceutical
representatives
undermines
the
Court
argument,
rejected
this
observing
that
The Supreme
[t]he
First
but
prohibiting
2670.
disfavored
truthful,
product
from
non-misleading
the
marketplace
advertisements.
Id.
by
at
Central Hudson.
22
prevent
the
dissemination
of
alcohol
advertisements
to
erred
appropriately
in
concluding
tailored
to
that
the
achieve
its
regulation
objective
of
is
reducing
Therefore, the
23
this
case
was
first
before
us
on
the
college
abusive
drinking,
as
well
as
the
associated
problems
of
See J.A.
undertaken
students,
alcohol-education
underage
students,
efforts
student
aimed
athletes,
at
first-year
fraternity
and
See
commercial
at
speech
targeted
by
market
attempting
which
24
to
limit
includes
advertising
substantial
approach
does
not
prohibit
all
advertising
for
such
advertising
comprehensive
plan
in
to
college
address
newspapers
a
very
as
part
serious
of
problem.
to
drinking.
the
states
goal
of
reducing
underage
25
and
abusive