High Court’s Cert Denial in Advertising Case Leaves in Place a Precedent Worth Ignoring

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.  Continue reading “High Court’s Cert Denial in Advertising Case Leaves in Place a Precedent Worth Ignoring”