Virginia’s Prohibition on Alcohol Advertising Upheld by the Fourth Circuit

Siouxsie isn’t usually swayed by alcohol

ads, but…  This gorgeous Absolut 100

bottle was designed by Phillip Plein.

On Friday, the Fourth Circuit reversed the district court and upheld the state of Virginia’s ban on alcohol advertising in college newspapers.

Siouxsie thinks the court got it wrong.  Let college kids have their booze ads.  The ruling is hardly earth shattering, but this case should be on its way to the Supreme Court.

In Educational Media Company at Virginia Tech. v. Swecker, college newspapers and the ACLU challenged the advertising ban as violating their First Amendment rights.

To keep the ban, the Alcoholic Beverage Control Board needed to show that the challenged regulation materially reduced underage and abusive drinking on college campuses.   The Board asserted, for the most part, that the regulation should be upheld because “history, consensus, and common sense support the link between advertising bans in college newspapers and a decrease in demand for alcohol among college students.”

The Fourth Circuit (in a 2-1 opinion) sided with the Board and held the ban on advertising was constitutional.

The dissent is where this case really gets interesting.  It points out that the ruling and the assumptions on which it is based conflicts with a 2004 opinion by the U.S. Court of Appeals for the Third Circuit, authored by then-Judge Samuel A. Alito Jr., who is now a justice on the U.S. Supreme Court.   The majority simply ignored this other opinion.  In that other opinion, Pitt News v. Pappert, then-Judge Samuel A. Alito explained that it was counterintuitive to think that that banning ads in a narrow sector of the media (i.e., media associated with educational institutions) would do any good:

Even if Pitt students do not see alcoholic beverage ads in The Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus together with The Pitt News.

The Swecker dissent also noted that the regulation should be struck down because  its exemptions completely undercut its stated objectives:

Although the regulation prohibits advertising of prices, brands of alcohol, and names of specialty drinks, it allows promotions of “beer,” “wine,” and “mixed beverages” to appear in the very same
newspapers that are allegedly “targeted at students under twenty-one.”

***

It is inconsistent to maintain that a regulation that permits advertisements for “beer night” or “mixed drink night” “in reference to a dining establishment” forms a reasonable fit with the goal of curbing underage or excessive drinking merely because it forbids advertisements for keg delivery, “mojito night,” or the “Blacksburg Wine Festival.”

This law seems to be poorly drafted and ineffective.  The ACLU says it hasn’t decided whether it will seek en banc review (review by the entire Fourth Circuit).  Siouxise says skip it; they should take their fight straight to the Supreme Court.

The opinion written by Judge Dennis Shedd is at this link.

Bonus fun fact:  Judge Dennis Shedd was in private practice less than two years before President Bush nominated him to the United States District Court for the District of South Carolina; he was  confirmed two weeks later.

Source:  The Chronicle of Higher Education

Source:  How Appealing

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~ by siouxsielaw on April 12, 2010.

One Response to “Virginia’s Prohibition on Alcohol Advertising Upheld by the Fourth Circuit”

  1. Kind of off-topic but I LOVE that bottle, and would consider having a bar at home if it could be filled with beauties such as these 🙂 As it is, I have one lonely Umeshu bottle from Japan, and some home-brew of my husband’s in the fridge.

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