Bryce L. Friedman, Simpson Thacher & Bartlett LLP
The U.S. Court of Appeals for the Fourth Circuit recently upheld a Virginia regulation restricting alcohol-related ads in college publications. The ruling, Educational Media Company at Virginia Tech, Inc. v. Susan R. Swecker, overturned a District Court injunction against the enforcement of a Virginia Alcoholic Beverage Control Board rule.
After the Swecker District Court decision, I authored a Legal Opinion Letter for WLF where I wrote that the trial court “confirm[ed] that the government bears a significant burden in regulating alcohol advertising, particularly if the purpose of that regulation is purportedly to curb underage drinking.” The circuit court’s April 19, 2010 Swecker opinion certainly didn’t agree with my assessment of the government’s burden in a commercial speech case. It also seems directly at odds with a Third Circuit decision authored by then-Third Circuit Judge Samuel Alito, The Pitt News v. Pappert. There, Judge Alito found the government didn’t meet its burden of proof, and thus struck down a state statute prohibiting all paid alcohol advertising in educational institution publications. That ruling was also the subject of a WLF publication, available here. Continue reading