[Posted April 9, 2010] Okay; I finished posting my weekly-wrap-up just a few minutes ago, and then the e-mail arrived from the Fourth Circuit notifying me of the arrival of todays opinions. This batch arrived uncharacteristically late in the day (the e-mail is postmarked 5:12 pm, instead of the usual 3 pm or so), so if Id been a slacker and left early, I would have missed todays whopper of a decision in the scrap between the Virginia ABC Board and the campus newspapers at U.Va. and Virginia Tech. Todays ruling is Educational Media Co. v. Swecker.
A split panel of the Fourth Circuit today reverses a magistrate judges ruling, thus reaffirming the constitutionality of the Boards regulations prohibiting the advertising of alcohol in the schools newspapers, The Cavalier Daily and The Collegiate Times. The district court had found the Boards regulations unconstitutional, applying the four-part analysis found in Central Hudson Gas & Electric v. NY Public Service Commn, 447 US 557 (1980). The district court had ruled in favor of the newspapers on the third part of that test whether the advertising ban directly and materially advances the governments substantial interest.
In doing that, the district court had found no link between advertising bans and a decrease in underage drinking. Besides, the papers urged, students see alcohol ads elsewhere (ESPN comes readily to mind), so having these ads wont make a difference anyway. The Fourth Circuit cites a key, undeniable fact to support reversal: [A]lcohol vendors want to advertise in college student publications. It is counterintuitive for alcohol vendors to spend their money on advertisements in newspapers with relatively limited circulation, directed primarily at college students, if they believed that these ads would not increase demand by college students.
Well, theres no arguing with that; if there were no connection at all, then the beer companies would plant their seeds in more fertile fields. Judge Shedd and Senior Judge Hamilton form todays majority, while Judge Moon (sitting by designation from the Western District, where ironically both universities are located) would affirm the finding that the regulation is facially infirm. He describes the link between the advertising ban and underage drinking as “conjecture.” (Remember, not all college students are underage, and underage drinking is the only permissible target of a regulation like this.)