The Legal Pulse reported two weeks ago on the ACLU of Virginia’s pending petition to the U.S. Supreme Court (with the amicus support of WLF) for review of a decision by the U.S. Court of Appeals for the Fourth Circuit, Educational Media Co. at Virginia Tech, Inc. v. Swecker, which upheld Virginia’s regulatory ban on alcohol advertisements in college newspapers.  The Supreme Court announced on Monday that it had denied the cert petition.  While the denial of certiorari fails to correct the Fourth Circuit’s deeply flawed application of Supreme Court jurisprudence on commercial speech, the Court’s action is in no way precedential, leaving federal courts the choice to ignore Swecker – and ignore Swecker they should.

Limits on commercial speech should be struck if the government cannot prove that, in the words of past High Court opinions, the law “alleviates the cited harms to a material degree.”  The Supreme Court has also written that such a direct connection between harm and law cannot be proven “by mere speculation or conjecture.”  But the Fourth Circuit’s controversial 2-1 Swecker decision eviscerated this “material” advancement requirement by holding that mere “history, consensus, and simple common sense” were enough to prove that the alcohol ad ban was directly connected to the state’s interest in addressing the conduct of underage drinking.  The state regulators cited no scientific evidence to establish a connection between advertising and underage consumption or that banning speech would reduce such illegal behavior. 

Such a blatant refusal to provide evidence was fatal to another state’s nearly identical ban on alcohol ads in college newspapers in 2004.  Then Third Circuit judge Justice Samuel Alito authored an opinion, Pitt News v. Pappert, which held a Pennsylvania ban on such alcohol ads violated the First Amendment because, among other reasons, the state relied upon mere “speculation and conjecture” in relying upon “common sense” to justify its actions.  Unsurprisingly, the Swecker majority relegated Pitt News to two dismissive references in footnotes.

The High Court’s denial of cert in Swecker is a reward of sorts for New Prohibition activists’ long-term strategy to create an impression of “historical consensus” that advertising leads to underage alcohol consumption.  Organizations like the Center for Marketing and Youth (CAMY) and the Center for Science in the Public Interest (CSPI) have for years bombarded the press and policy makers with claims that such a link is self-evident, and have attempted to back up their claims with social science studies.

Many of those studies, which have been repeatedly cited and embraced as true, have now been called into question scientifically by a Professor Emeritus in Economics at Penn State University, Dr. Jon P. Nelson.  In one review of studies on the effect of ads on youth smoking and drinking, Dr. Nelson concludes that

studies using longitudinal surveys have not established that advertising is a causal factor for youth drinking and smoking and, second, these studies cannot be used to support recommendations for advertising and marketing bans.

A second study by Dr. Nelson looked at “publication bias” and “dissemination bias” in scientific literature on youth drinking and alcohol ads.  This is the first such study done in the youth alcohol consumption area.  Publication and dissemination biases can affect how studies are presented and interpreted, and can occur in situations where advocates of a cause pick and choose specific studies or results within those studies which bolster preconceived notions.  On the publication bias side, Dr. Nelson’s detailed analysis of public health researchers’ studies revealed the elimination of important variables and reporting of only partial results, as well as deficiencies in research designs, shortcomings which leave the studies inconclusive at best and misleading at worst.

On the dissemination bias side, Dr. Nelson pointed to statements made by CAMY and even the Federal Trade Commission about alcohol ad studies where key information is ignored or unclear results are inflated to show a connection between advertising and underage drinking.  He states, for instance, that “the scientific basis for the FTC’s reports [to Congress on youth consumption and marketing] is incomplete and misleading.”

A fair assessment of the scientific evidence, or lack there of, supporting alcohol ad bans would necessarily include Dr. Nelson’s findings.  But under the highly deferential judicial review standard invented by the Fourth Circuit in Swecker, the “history” and “consensus” CAMY and its allies in government have created about alcohol ads increasing youth consumption would be enough, and no scrutiny of the (un)supporting science would occur.  One hopes that federal district courts outside the Fourth Circuit and other appellate courts view Swecker as an outlier opinion, and instead follow the reasoning of Judge Alito in Pitt News, which is supported by nearly forty years of Supreme Court jurisprudence on commercial speech.  The application of Swecker‘s dismissive approach to commercial speech in other cases involving alcohol ad restrictions, as well as to restrictions on advertising for other products, bodes poorly for a free enterprise system like ours, where information is the fuel that drives consumer choice and price competition.