On Tuesday, November 23, the U.S. Supreme Court will conference to consider granting cert in Educational Media Co. at Virginia Tech, Inc., et al. v. Swecker, et al. The case questions the constitutionality of a regulation preventing alcohol companies from advertising in Virginia college newspapers.  Washington Legal Foundation (WLF) filed a brief on September 27 urging the Court to review the case and ultimately strike down the regulation.

To constitutionally restrict commercial speech, a regulation must answer the four prongs of the Central Hudson test: (1) Is the expression entitled to First Amendment protection? (2) Does the government have substantial interest in regulating the speech?  (3) Does the restriction directly advance the asserted interest? And (4), Is the restriction no more extensive than necessary?

In this case, the third point deserves particular scrutiny.  The majority opinion of the Fourth Circuit argued that the prohibition of alcoholic advertisements in college newspapers obviously limits underage alcohol consumption.  If advertisements didn’t increase consumption, why would companies continue to buy advertisements?  The court rested its case with this “common sense” argument.

WLF, the District Court (which found the regulation unconstitutional), the ACLU, and dissenting Fourth Circuit Judge Moon disagree.  The court’s common sense argument is insufficient for substantiating a link between advertisement restriction and underage alcohol consumption.  It fails for multiple reasons:

  • The regulation does nothing to address the millions of other information sources available to college students.  In a similar case in the Third Circuit, then Judge Alito stated that students “will still be exposed to a torrent of beer ads on television and the radio, and … in other publications.” (Pitt News v. Pappert)  By prohibiting advertisements in college newspapers, students simply get their alcohol information elsewhere.
  • The Fourth Circuit also fails to consider the dual nature of advertisements.  Most economists agree that advertisements are intended to increase market demand or else to shift market share.  If Budweiser runs a television ad, it might not increase demand, but it might shift consumers from Heineken to Budweiser.  This directly refutes the Fourth Circuit’s assertion that advertisement must lead to increased demand or else producers would stop advertising.
  • Lastly, the link between the alcohol advertisements in college newspapers and alcohol consumption is weakened by the dubious nature of the studies cited by the Fourth Circuit.  As demonstrated in a recent paper by Penn State economics professor Jon P. Nelson, the academic community has not confirmed that alcohol advertisements lead to increased youth consumption, and the studies that do make this claim are academically suspect.  This led Nelson to comment, “My conclusion is that the emphasis on advertising bans and similar regulations in the public health literature is misplaced.”

This final point is particularly important to recognize given the new public health crusade to strip alcohol companies of their advertising rights.  One recent paper from the American Academy of Pediatrics calls for severe “limitations on alcohol advertising.”  The Institute of Medicine (IOM) “recommend[s] that the alcohol industry immediately eliminate advertising in media venues where 25% or more of the audience is below the legal drinking age.” (Reducing Underage Drinking: A Collective Responsibility).  And the U.S. Center for Disease Control and Prevention granted $4 million to the Center on Alcohol Marketing and Youth (CAMY), a group at Johns Hopkins School of Public Health that seems hell-bent on eliminating alcohol ads.

If the Supreme Court decides not to hear this case, activist regulators will be spurred to new levels.  After all, the Fourth Circuit only needed a weak causal link based on common sense to strip these Virginia companies of their First Amendment rights.

To see a recent WLF Legal Opinion Letter on this subject by Katherine A. Fallow of Jenner & Block LLP, click here.