Alcohol Advertisements in College Newspapers

On April 9, 2010, the Federal Appellate Court for the Fourth Circuit in Virginia released its opinion in the case of Educational Media Co. v Swecker. In this case, the Alcoholic Beverage Control Board in the Commonwealth of Virginia had created regulation on alcoholic beverage advertisements in college student publications. The Educational Media Company at Virginia Tech and The Cavalier Daily, Inc. at the University of Virginia, which represent The Collegiate Times and The Cavalier Daily newspapers respectively, argued that two of the restrictions created by the Board violate their First Amendment rights. The District Court granted the college newspapers summary judgment and enjoined the regulation. The Board then appealed to the Fourth Court on one of the restrictions, and the Court reversed the decision of the District Court.

The regulation in question, known as § 5-20-40 (B)(3), defines a college student publication with these three requirements. It must be:

(1) Prepared, edited, or published primarily by its students;
(2) Sanctioned as a curricular or extracurricular activity; and
(3) "Distributed or intended to be distributed primarily to persons under 21 years of age."

If a publication meets these qualifications, the Board regulates that it “may not print advertisements for beer, wine, or mixed beverages unless the ads are ‘in reference to a dining establishment.’” Furthermore, while these exemptions may not reference alcohol brand or price in their advertisements, they may incorporate five approved words and phrases: “A.B.C. [alcohol beverage control] on-premises,” “beer,” “wine,” “mixed beverages,” “cocktails,” or “any combination of these words.”

This one regulation by the Alcoholic Beverage Control Board costs each newspaper approximately $30,000 a year in lost advertising revenue. The college newspapers in turn filed a complaint that this regulation is a violation of their First Amendment rights. To determine if this is true, the Fourth Court turned to the four-part test set forth in the case of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. The four points are as follows:

(1) Whether the commercial speech is protected by the First Amendment;
(2) Whether there is a substantial government interest in regulation;
(3) Whether the regulation directly and materially advances the government’s interest;
(4) Whether the regulation is not “more extensive than is necessary to serve that interest”

To address the first part of this test, commercial speech qualifies for protection by the First Amendment if it “(1) concern[s] lawful activity and (2) [is] not misleading.” The commercial speech in this case of the alcohol advertisements reaches of-age readers, and it therefore concerns lawful activity. Also the Alcoholic Beverage Control Board did not provid any evidence that the advertisements provide misleading information. For this reason, the regulation by the Board does restrict commercial speech protected by the First Amendment.

The second part of this test questions whether there is a substantial government interest in the regulation. The Board has stated that it has a substantial interest in combating underage drinking and abusive drinking by college students, which the newspapers do not dispute. For these reasons, the Board’s interest is found to be substantial.

The third part of this test is where the Fourth Circuit Court differed from the findings of the District Court. The Fourth Court agrees with the Board that “history, consensus, and common sense” support that the regulation banning alcohol advertisements in college newspapers decreases the demand for alcohol in college students.

In the fourth prong of this test, the Fourth Court rules that the regulation created by the Board is sufficiently narrow to warrant implementation. The Court rules that it is narrowly drawn as the regulation only prohibits certain kinds of alcohol advertisements. Furthermore, the Court argues it is sufficiently narrow as it only apples to college student publications which target students under the age of twenty-one. While the college newspapers argue that the regulation is not the least restrictive option in serving the interests of the Board, the Court finds that the regulation need not be “the single best disposition.”

Despite the fact that the majority opinion ruled in favor of the Alcoholic Beverage Control Board, I agree more with the dissenting opinion of Judge Moon. First, Moon makes the compelling argument that these newspapers in question should not even be regulated, as they do not fit the three requirements for regulation. Over half of the students at these universities are over twenty-one, as are the faculty and staff. Because of this, a majority of the readership of the newspapers is over the age of twenty-one, and the publications therefore are not "distributed or intended to be distributed primarily to persons under 21 years of age." For this reason, these newspapers should be exempt from any regulation.

Despite this fact, Judge Moon also makes a persuasive constitutional argument for why the Board should not be permitted to regulate the alcohol advertisements in these newspapers.

In the third prong of the Central Hudson test, Moon sides with the District Court’s ruling that the government carries the burden of proving the justification for a ban on commercial speech. The Central Hudson test specifies that regulation alleviates the harm “to a material degree” and that “this burden is not satisfied by mere speculation or conjecture.” Moon references a decision by the Third Court in the similar case of Pitt News v. Pappert. In the case of Pitt News, the Court found that a Pennsylvania statute banning alcoholic beverage advertising by media affiliated with a university or college failed the third and fourth prongs of the Central Hudson test. The Court argued that there was not proof that eliminating advertising of alcoholic beverages in the very limited and narrow sector of media associated with educational institutions would substantially decrease underage and abusive drinking.

The majority opinion in Educational Media Co v. Swecker argues that the fact that alcohol vendors want to put alcoholic beverage advertisements in the college newspapers proves that these ads increase alcohol demand by college students. However, as stated earlier, the majority of the readers of these newspapers are of legal age. The Alcoholic Beverage Control Board never stated as its purpose for regulation to decrease the general demand of alcohol by college students. Its expressed purpose is simply to decrease underage drinking and abusive drinking.

Moon argues that the regulation infringes on the constitutional rights of adults by permitting adults to only receive speech that the Commonwealth of Virginia has deemed appropriate for people under the age of twenty-one. He further argues that the regulation infringes on the rights of the under twenty-one readers who should be free to receive truthful information about “a lawful product that they will soon have the right to consume.” Lastly not only the readers are infringed upon, but so are the advertisers. The advertisers should have the right to communicate this information on alcoholic beverages for the readers.

Moon also takes issue with the fourth prong of the Central Hudson test as applied to this case. First, the regulation itself is inconsistent in that it will allow advertisements by dining establishments such as “mixed drink night,” but it will not allow for the advertisement of alcohol prices or brands. The regulation does not appear to fit the Board’s goal of curbing underage and abusive drinking by allowing a restaurant to advertise “mixed drink night” while banning the advertisement of a “margarita night.” The regulation itself is in fact not narrowly tailored, but instead entirely inconsistent.

Furthermore, the majority opinion argued that the regulation is not more extensive than necessary because it only applies to college student publications targeted at students under the age of twenty-one. As previously stated, the majority of the audience of the newspapers in question are not under the age of twenty-one.

The restriction of commercial speech must be “a necessary as opposed to merely convenient means of achieving” the goals of the Board. According to Moon, “the record indicates that ‘the Commonwealth can seek to combat underage and abusive drinking by other means that are far more direct and that do not affect the First Amendment.’”

For these reasons, I agree with Judge Moon that the regulation created by the Alcoholic Beverage Control Board does not meet the constitutional requirements of the four-prong Central Hudson test. In addition to not meeting the test, I also would argue that that the benefits of this regulation simply do not outweigh the negatives. On the one hand, this regulation is meant to curb underage and abusive drinking. It may be possible that restricting alcohol advertisements in college publications would curb these problems, even though this has not been proved. However, I think that the cons outweigh that potential pro. I do not think that this potential benefit justifies the suspension of these newspapers First Amendment rights.


1. Educational Media Co v. Swecker Full Text: pacer.ca4.uscourts.gov/opinion.pdf/081798.P.pdf

2. ACLU Article on District Court Decision: http://www.aclu.org/free-speech/federal-court-says-ban-alcohol-related-advertising-college-publications-violates-free-sp

3. First Amendment Coalition Article: http://www.firstamendmentcoalition.org/2010/04/federal-court-rules-virginia-can-ban-alcohol-ads-in-college-publications/

4. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York Case Full Text: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=447&invol=557

5. Pitt News v. Pappert Full Text: www.ca3.uscourts.gov/opinarch/031725p.pdf