WLF Legal Opinion Letter
Court's Educational Media Ruling: A Dubious Detour From Commercial Speech's Protective Path
By Rebecca K. Glenberg
May 6, 2011 (Vol. 20 No. 10)
In November 2010, the United States Supreme Court denied certiorari in Educational Media Co. at Virginia Tech, Inc. v. Swecker, 602 F.3d 583 (4th Cir. 2010), cert denied 2010 U.S. LEXIS 9256 (U.S., Nov. 29, 2010). The case could have a profound negative impact on the commercial speech doctrine by undermining the Supreme Court's requirement that regulation of commercial speech must directly and materially serve a substantial governmental interest.
In Educational Media, the Fourth Circuit by a 2-1 vote upheld a regulation of the Virginia Alcoholic Beverage Control Board (ABC) that prohibited any advertisement of alcoholic beverages in "college student publications," except "in reference to a dining establishment." "College student publication" was defined as "any college or university publication that is prepared, edited or published primarily by students at such institution . . . which is distributed or intended to be distributed primarily to persons under 21 years of age." (The word "primarily" was not defined. ABC considered the plaintiff newspapers to be "college student publications" even though more than half of their readers were age 21 or older. 602 F.3d at 587 n.1.)
The court applied the commercial speech test set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 566 (1980), under which the court must determine "whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." The government claimed that the regulation advanced its interest in reducing underage drinking and binge drinking on college campuses. Educational Media, 602 F.3d at 589, and the Fourth Circuit found "the link between [the advertising ban] and decreasing demand for alcohol by college students to be amply supported by the record." Id. at 590. But the court cited no empirical evidence in support of such a link. Instead, the court relied upon "history, consensus, and simple common sense" to hold that a general correlation between alcohol advertising and consumption -- paired with the fact that "‘college student publications' primarily target college students and play an inimitable role on campus" -- was sufficient to justify the ban. Id.1
In dissent, Judge Moon observed that the state had the burden of proving that the regulation advanced its interests "to a material degree." Id. at 592. "This burden is not satisfied by mere speculation or conjecture" and the challenged regulation must provide more than "ineffective or remote support for the government's purposes." Id. (quoting Edenfield v. Fane, 507 U.S. 761, 770-71 (1993). Applying this standard, Judge Moon found that the evidence for a link between the alcohol advertising ban and amounted to no more than "speculation" and "conjecture." Id. at 593. He noted that ABC's own expert, while insisting on the efficacy of the regulation, admitted that "[t]here is ... very little empirical evidence that alcohol advertising has any effect on actual alcohol consumption," and that "a ban on advertising in one medium generally results in greater advertising saturation in other media or forms of marketing." Id. at 593 n.5. Moreover, although the regulation had been in place in one form or another since prohibition, underage and abusive drinking by college students had increased, rather than decreased over time. Id.
The different approaches of the majority and the dissent reflect an inconsistency in the Supreme Court's language about how much evidence the First Amendment demands to justify a commercial speech restriction. At times, the Court has said the link between a regulation and the interest it serves may be shown by "history, consensus, and simple common sense." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555, (2001) (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)). In other cases, the Court has stressed that the government's burden "is not satisfied by mere speculation or conjecture," or if the law "provides only ineffective or remote support for the government's purposes." Edenfield v. Fane, 507 U.S. 761, 770 (1993). Instead, "a governmental body seeking to sustain a 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." Id. at 770-71.
The Educational Media majority's approach, embracing the Supreme Court's "common sense" language while ignoring language indicating the need for empirical evidence, eviscerates First Amendment protections for commercial speech. As the Court has sometimes recognized, a proven means-end connection is "critical; otherwise, ‘a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression.'" Rubin v. Coors Brewing, 514 U.S. 476, 487 (1995) (quoting Edenfield, at 771).
Moreover, allowing the government to justify a commercial speech restriction based on mere "common sense" is not workable, because common sense is a malleable concept that can yield strikingly different results even in similar contexts. For example, in Educational Media, the court found it "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." 602 F.3d at 590 (emphasis added). But in The Pitt News v. Pappert, 379 F.3d 96 (3rd Cir. 2004), then-Judge Alito's intuition was directly to the contrary. Analyzing a regulation nearly identical to that at issue in Educational Media, the Pitt News court found that given the "torrent" of alcohol advertising available to college students from other sources, "[t]he 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. . ." 379 F.3d at 107 (emphasis added).
By denying certiorari in Educational Media, the Supreme Court missed an important opportunity to clarify the roles that common sense and evidence play in the Central Hudson analysis. In the absence of guidance from the Court, lower courts should avoid following the Fourth Circuit's example, and should insist that restrictions on commercial speech be supported by empirical evidence that the regulation will actually achieve the government's substantial interests.
Rebecca K. Glenberg is Legal Director of the American Civil Liberties Union of Virginia, which represented the plaintiffs/Petitioners in Educational Media Co. at Virginia Tech, Inc. v. Swecker.
1. The case is currently on remand to the District Court for consideration of two alternate arguments: (1) that the regulation is unconstitutional as applied to the plaintiff student newspapers, and (2) that the regulation is unconstitutional because it discriminates against a narrow segment of the media.