Alcoholic beverage producers and advertisers have a new win in the line of cases providing
constitutional protection under the First
Amendment to beverage industry commercial speech.
The
opinion in Educational Media v. Insley,
comes from the Fourth Circuit Court of Appeals and can
be found here.
The
case started because the Virginia Alcoholic Beverage Control Board (the ABC)
has a regulation in its administrative code prohibiting college newspapers from
printing alcohol advertisements. A copy
of the relevant code provision can be
found here.
A
group of college newspapers brought suit challenging the regulation under the first
amendment.
The regulation
reads:
Advertisements of alcoholic
beverages are not allowed in college student publications unless in reference
to a dining establishment, except as provided below. A “college student
publication” is defined as any college or university publication that is
prepared, edited or published primarily by students at such institution, is
sanctioned as a curricular or extra-curricular activity by such institution and
which is distributed or intended to be distributed primarily to persons under
21 years of age.
In getting to the heart of
the matter, the Court noted that the U.S. Supreme Court’s decision in Central Hudson v.
Electric Corp., (S.Ct. 1981), controlled that matter and that of the
standards set forth in Central Hudson,
the ABC regulation in this case was not “narrowly tailored” to achieve the
ABC’s stated purpose of combating underage drinking and abusive college
drinking.
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Additionally,
in a pretty stark condemnation of the ABC’s regulation, the Court said that
because the majority of the newspapers readers were over 21, the state
prohibition on alcohol advertisements kept adults “from receiving truthful
information about a product that they are legally allowed to consume.” The Court went on to note that the state
beverage control board’s regulation “attempts to keep would-be drinkers in the
dark based on what the ABC perceives to be their own good.”
In finally rejecting the ABC’s contentions, the
Court revived a continued understanding about this line of protection for
commercial speech and noted that you cannot remove a popular but disfavorable
product from the marketplace by prohibiting truthful non-misleading
advertisements.