ANA (Association of National Advertisers), joined by the American Association of Advertising Agencies (4A’s) and the American Advertising Federation (AAF), has filed a brief calling on the U.S. Supreme Court to review a case involving restrictions on alcohol beverage advertising in university publications. These sweeping restrictions are almost certain to violate the First Amendment.
The U.S. Court of Appeals for the Fourth Circuit held in Educational Media Co. at Va. Tech, Inc. v. Swecker that a Virginia law that bans the advertisement of alcohol beverage products in publications directed to a primarily student audience was constitutional. The court based its holding on the fact that a portion of the readership is under legal drinking age and the state has an interest in preventing underage drinking. This decision runs directly counter to an earlier decision by the Third Circuit Court of Appeals dealing with a practically identical law. Supreme Court Justice Samuel Alito, while he was serving on the Third Circuit, wrote the decision for the Third Circuit.
Our friend-of-the-court brief argues that the Fourth Circuit’s decision contradicts the Supreme Court’s trend in giving increasing protection to commercial speech, and that speech to adults about lawful products cannot be restricted utilizing this overly broad child-protection rationale. Our brief also contends that the Fourth Circuit misapplied the Supreme Court’s Central Hudson test for commercial speech restrictions.
Dan Jaffe, ANA’s Executive Vice President for Government Relations said, “For a number of years the Supreme Court has clearly stated that regulating speech should be a last, not first resort. Despite this admonition, the Fourth Circuit held that speech about a product that can be lawfully purchased by the majority of the readers of the student publications in question can be restricted because there are minors in the audience. This holding severely censors lawful advertising to adults and is therefore unconstitutional. We hope the Supreme Court will step in to stop the growing trend of government regulators to censor more and more speech directed to adults because those at the threshold of adulthood might see it.”
Jaffe concluded: “We hope that the Supreme Court will agree to hear this very important case. The Court typically intervenes when two appeals courts are in conflict. The Supreme Court should clear up the significant confusion caused by these inconsistent decisions and continue to afford full constitutional protection to advertising about a lawful product to age-appropriate audiences.”
The brief can be <a href="http://www.ana.net.getfile/15868″>viewed here.
About the ANA
Founded in 1910, the Association of National Advertisers (ANA) leads the marketing community by providing it with insights, collaboration and advocacy. ANA’s membership includes 400 companies with 9,000 brands that collectively spend over $250 billion in marketing communications and advertising. The ANA strives to communicate marketing best practices, lead industry initiatives, influence industry practices, manage industry affairs, and advance, promote and protect all advertisers and marketers. More information is available at www.ana.net.
