Fourth Circuit holds Virginia’s college newspaper alcohol advertising ban unconstitutional under the First Amendment as applied to Collegiate Times and Cavalier Daily

A split panel of the Fourth Circuit today held that Virginia’s ban on certain alcohol advertising in college newspapers violates the First Amendment as applied to Collegiate Times (at Virginia Tech) and Cavalier Daily (at UVA). This holding of as-applied unconstitutionality comes almost three-and-a-half years after the Fourth Circuit upheld the same regulation against a facial challenge in Educational Media Co. v. Swecker, 602 F.3d 583 (4th Cir. 2010). The panel declined to decide whether to apply a form of heightened scrutiny to the Virginia speech regulation, but held that the regulation violated the fourth prong of the four-prong Central Hudson test for assessing the validity of commercial speech restrictions. The opinion for the court in today’s decision, Educational Media Co. v. Insley, was authored by Judge Thacker and joined in by Judge King. Judge Shedd (the author of the panel opinion on the facial challenge) dissented. (For more information and background, see the ACLU’s Press Release touting the victory and AP coverage in the Washington Post.)

As described by the Fourth Circuit, the Central Hudson test provides that “a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest.” The parties agreed that prongs (1) and (2) were satisfied, and the court held that its earlier analysis in Swecker established that prong (3) was satisfied. Turning to prong (4), the court held that “the challenged regulation fails under the fourth Central Hudson prong because it prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume.” In support of this conclusion, the majority observed that “roughly 60% of the Collegiate Times’s readership is age 21 or older and the Cavalier Daily reaches approximately 10,000 students, nearly 64% of whom are age 21 or older.”

Reading today’s opinion in light of the Fourth Circuit’s earlier opinion in Swecker, one should feel some sympathy for Judge Lauck, who has now been twice reversed in this case. Judge Lauck initially held that the regulation violated the First Amendment on its face, only to be reversed in Swecker. Judge Lauck then upheld the regulation against an as-applied challenge under Swecker, only to be reversed in an opinion that, as a practical matter (though not as a technical matter), reaches the same bottom-line conclusion as Judge Lauck’s initial decision. Moreover, the main evidence relied upon by the Fourth Circuit panel in its consideration of the as-applied challenge was before the panel that decided Swecker and was discussed in Judge Moon’s dissenting opinion in that case.  Although the opinion contains several passages discussing the distinction between facial and as-applied challenges, this is an area of the law that is as murky (or murkier) in the Fourth Circuit as it is elsewhere throughout the federal judiciary.

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“Liking” a Facebook campaign page “is the Internet equivalent of displaying a political sign in one’s front yard” (4th Cir. 2013)

A split panel of the Fourth Circuit today reinstated the free speech and free association claims of some sheriff’s deputies in Hampton, Virginia who alleged that they had been fired from their jobs for supporting the incumbent sheriff’s political opponent. Among the issues in the case was whether clicking “Like” on the challenger’s campaign page was speech within the protection of the First Amendment. The district court said no: “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” But the Fourth Circuit today disagreed. Here is the relevant portion of the Court’s analysis (discussing the claim of one Carter):

Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for the Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so the Campaign Page’s name and a photo of Adams –which an Adams campaign representative had selected as the Page’s icon – were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the  “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message . . ., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones,  706 F.3d 379, 388 n.3 (4th Cir. 2013).

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it  is the Internet equivalent of displaying a political sign in  one’s front yard, which the Supreme Court has held is  substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43,  54-56 (1994). Just as Carter’s placing an “Adams for Sheriff” sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s  Campaign Page conveyed that message to those viewing his profile  or the Campaign Page.15 In fact, it is hardly surprising that  the record reflects that this is exactly how Carter’s action was  understood. See J.A. 160 (McCoy’s testimony that in light of  Carter’s liking Adams’s Campaign Page, “everybody was saying  that . . . Carter is out of there because he supported Adams  openly”); see also J.A. 793 (Sheriff’s Office employee stating  that Roberts had said that “certain employees were on the  Facebook page of his opponent, Jim Adams, indicating their support of Adams for Sheriff”).

All of this sounds just right.

Chief Judge Traxler wrote the opinion for the court in Bland v. Roberts, in which Judge Thacker joined.  Judge Hollander (D.Md., sitting by designation) wrote a separate opinion concurring in part and dissenting in part. The judges were not split on the liking-as-speech issue but on the application of qualified immunity, a split largely traceable to different views about the scope of the en banc holding in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc).

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