Fourth Circuit Rules Alcohol Ad Ban Unconstitutional As Applied

A divided Fourth Circuit Court of Appeals panel has determined that a Virginia
Alcohol Beverage Control Board prohibition on alcohol advertisements in
college newspapers, as applied, violates the First Amendment rights of two
campus newspapers because the majority of the papers’ readers are age 21
or older, and thus the rule is “not appropriately tailored to Virginia’s stated
aim.” Educ. Media Co. at Va. Tech, Inc. v. Insley, No. 12-2183 (4th Cir., decided
September 25, 2013). So ruling, the court reversed a district court decision
upholding the rule’s validity.

The board argued that the purpose of the regulation “is to combat underage
and abusive college drinking.” The court majority found that, under either a
strict scrutiny or intermediate scrutiny analysis, the regulation was overbroad
as applied to college newspapers that were read by college students of legal
age. The regulation failed, said the court, “because it prohibits large numbers
of adults who are 21 years of age or older from receiving truthful information
about a product that they are legally allowed to consume.” In response to
the board’s contention that the regulation was designed, in part, to prevent
abusive drinking by those who are of legal age, the court also observed,
“states may not ‘seek to remove a popular but disfavored product from the
marketplace by prohibiting truthful, non-misleading advertisements.’”

A dissenting judge would have found the rule constitutional, finding that it
“only minimally impacts commercial speech by attempting to limit advertising
aimed at a targeted market which includes a substantial percentage
of readers for whom use of the product is illegal.” In this case, the evidence
showed that one newspaper’s readership included 60 percent of legal age,
the other’s had 64 percent of legal age.