                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-2183


EDUCATIONAL MEDIA COMPANY AT VIRGINIA TECH, INCORPORATED;
CAVALIER   DAILY,  INCORPORATED,   The  Cavalier   Daily,
Incorporated,

                Plaintiffs - Appellants,

           v.

J. NEAL INSLEY, Commissioner, Virginia Alcoholic Beverage
Control Commission; SANDRA C. CANADA, Commissioner, Virginia
Alcoholic Beverage Control Commission; W. CURTIS COLEBURN,
III,   Chief  Operating   Officer  Virginia  Department   of
Alcoholic Beverage Control; FRANK MONAHAN, Director, Law
Enforcement Bureau of the Virginia Department of Alcoholic
Beverage Control; BRYAN M. RHODE, Commissioner, Virginia
Alcoholic Beverage Control Commission,

                Defendants – Appellees.

------------------------------

WASHINGTON LEGAL FOUNDATION; STUDENT PRESS LAW CENTER;
COLLEGE NEWSPAPER BUSINESS AND ADVERTISING MANAGERS; THOMAS
JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION; THE
MEDIA INSTITUTE,

                Amici Supporting Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:06-cv-00396-MHL)


Argued:   May 14, 2013                   Decided:   September 25, 2013
Before KING, SHEDD, and THACKER, Circuit Judges.


Reversed by published opinion. Judge Thacker wrote the majority
opinion, in which Judge King joined.      Judge Shedd wrote a
dissenting opinion.


ARGUED: Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Appellants.
Catherine Crooks Hill, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees.    ON BRIEF:  Frank
M. Feibelman, ACLU OF VIRGINIA, Richmond, Virginia, for
Appellants.    Kenneth T. Cuccinelli, II, Attorney General of
Virginia, E. Duncan Getchell, Solicitor General of Virginia,
Wesley G. Russell, Jr., Deputy Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Cory L. Andrews, WASHINGTON LEGAL FOUNDATION, Washington, D.C.,
for Amicus Washington Legal Foundation.     Katherine A. Fallow,
Carrie F. Apfel, Joshua N. Friedman, JENNER & BLOCK LLP,
Washington, D.C.; Frank D. LoMonte, Adam Goldstein, Adam E.
Schulman, STUDENT PRESS LAW CENTER, Arlington, Virginia, for
Amici Student Press Law Center and College Newspaper Business
and Advertising Managers. J. Joshua Wheeler, Clayton N. Hansen,
THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE
EXPRESSION, Charlottesville, Virginia; Bruce D. Brown, Thomas E.
Hogan, BAKER & HOSTETLER, Washington, D.C., for Amici The Thomas
Jefferson Center for the Protection of Free Expression and The
Media Institute.




                                2
THACKER, Circuit Judge:

             The   Virginia      Alcoholic        Beverage   Control         Board      (the

“ABC”)     prohibits      college        student    newspapers         from    printing

alcohol advertisements.             Appellants Educational Media and The

Cavalier     Daily       (hereinafter       “Appellants”        or      the    “College

Newspapers”)       are     non-profit       corporations        that     own       student

newspapers        at     Virginia     Polytechnic         Institute          and        State

University    (“Virginia        Tech”)     and     the   University      of    Virginia

(“UVA”), respectively.            In this action, the College Newspapers

challenge the ABC ban on alcohol advertisements as violative of

the First Amendment, as applied to them.

            The district court granted summary judgment in favor

of   the   ABC,    concluding       that    the    challenged      regulation           is   a

constitutionally         appropriate       restriction     of   commercial          speech

given Virginia’s substantial interest in combatting underage and

abusive    drinking      on    college     campuses.       However,      in    this      as-

applied     challenge,         because      the     advertising         ban        is     not

appropriately tailored to Virginia’s stated aim, we reverse the

judgment of the district court.

                                           I.

              Virginia        precludes     college      student     newspapers         from

printing alcohol advertisements.                 See 3 Va. Admin. Code § 5-20-

40(A)(2)(2010)         (the   “challenged       regulation”).          The    challenged

regulation provides:

                                            3
       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.

3 Va. Admin. Code § 5-20-40(A)(2). 1

                 In 2006, the College Newspapers brought suit in the

Eastern      District      of   Virginia,   contending     that    the    challenged

regulation was violative of the First Amendment.                         The College

Newspapers made three distinct arguments.                   First, they argued

that       the    challenged      regulation      impermissibly     discriminates

against      a    narrow    segment    of   the    media   --     college     student

newspapers -- thus subjecting the regulation to the exacting

strict       scrutiny      standard,    which,      they   argued,       it   cannot

withstand.         Second, they argued that, even if strict scrutiny is

inapplicable, the challenged regulation fails, on its face, to

satisfy the Supreme Court’s Central Hudson test, which subjects

       1
       In 2008, at the time of the initial district court
disposition in this case, the relevant regulatory language was
codified at 3 Va. Admin. Code § 5-20-40(B)(3) (2008).       This
section was amended in 2010.     The only substantive difference
between the version of the regulation in place in 2008 and the
version in place at present is that the current version of the
regulation does not enumerate the phrases permissible for use in
an alcohol advertisement by a “dining establishment,” while the
former version did.      This difference is immaterial to our
resolution of the present appeal.



                                            4
non-misleading commercial speech to intermediate scrutiny.                               See

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447

U.S. 557 (1980).             Finally, the College Newspapers argued that,

even   if   the       challenged     regulation           could   withstand       a   facial

challenge    under       Central     Hudson,        the    regulation      fails      Central

Hudson as-applied.

                                           A.

             The ABC asserts that the purpose of the challenged

regulation is to combat underage and abusive college drinking.

During discovery, each party proffered expert testimony on the

question of whether the challenged regulation was effective in

this regard.          Specifically, the ABC offered a declaration of Dr.

Henry Saffer, an economics professor at Kean University in New

Jersey.     Dr. Saffer testified that, while the vast majority of

studies found that alcohol advertising bans do not, in fact,

reduce the overall market demand for alcohol, those studies are

inapplicable here.             Notably, Dr. Saffer contends that, while

most scholars assume that a prohibition on alcohol advertising

in one forum simply pushes alcohol advertising to other forums,

according        to   him,    this   assumption           only    holds    true    where   a

reasonable       substitute      for     the       regulated      forum    exists.       Dr.

Saffer testified that this assumption does not hold true in the

context     of    college      student    newspapers,            because   “[a]       college

newspaper is a very targeted, specific kind of media,” and there

                                               5
is “nothing else that can replace that kind of targeted media

that’s     specifically           oriented            towards    and     reaches       college

students.”        J.A. 313. 2       According to Dr. Saffer’s reasoning, in

the unique instance of college newspapers, alcohol advertising

bans   actually      do    have    a    significant           effect    on    market    demand

despite the vast majority of studies that show otherwise outside

of this particular context.

             In     contrast,          the    College         Newspapers       offered     the

testimony    of     Dr.     Jon    P.    Nelson,         an     economics      professor    at

Pennsylvania       State        University.             Based    on    his    research,    Dr.

Nelson     testified            that     “[a]dvertising               bans,    partial      or

comprehensive, do not reduce the demand for alcohol.”                              J.A. 484.

Rather, he explains, “[i]n a ‘mature market,’ such as alcohol

beverages, the primary effect of advertising is to create and

maintain     brand     loyalty[,]”           as       opposed    to    expanding       overall

market demand.            Id.     He also notes that college students are

continually exposed to alcohol advertisements in a variety of

forums -- including television, radio, and the internet -- which

“will totally offset any possible temperance effect of the ABC

regulation.”       Id. at 487.




       2
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                                  6
           In a declaration filed in response to Dr. Saffer’s

testimony, Dr. Nelson noted that Dr. Saffer did not present any

specific evidence in support of his proposition that targeted

advertising     bans     in    college         student    publications        actually

achieve the desired goal, that is, reduced drinking.                         Moreover,

Dr. Saffer conceded that, in addition to the lack of empirical

support for selective bans on alcohol advertising in college

student    publications,       other       methods       of    combatting        alcohol

consumption on college campuses have been proven more effective.

Specifically,      as   the   district      court    noted,      “Dr.    Saffer      also

admits that increased taxation has been shown to reduce underage

consumption in a more effective manner than advertising bans and

that   counter-advertising          has    effectively         reduced      levels    of

alcohol consumption.”         J.A. 586-87.

           The College Newspapers also established, without any

counter-argument from the ABC, that a majority of their readers

are over the age of 21.             Specifically, the Collegiate Times --

the    Virginia     Tech      student      newspaper          owned   by     Appellant

Educational Media -- has a daily readership of roughly 14,000

readers.    According to a 2004 survey, persons age 21 or over

constituted       roughly     60%    of        the   Collegiate       Times’      total

readership and about 59% of the Collegiate Times’ total student

readership.         Similarly,       the       Cavalier       Daily   has    a    daily

readership of about 10,000 readers.                      As of January 1, 2007,

                                           7
persons age      21    or    over     comprised         approximately       64%    of    UVA’s

total student population.

                                                B.

           In     2008,       following          the     close      of   discovery,       the

district     court     granted        the       College       Newspapers’      motion      for

summary judgment, declaring that the challenged regulation was

facially       unconstitutional           under        Central       Hudson.            Having

determined      that   the        regulation         failed    Central     Hudson    on    its

face,    the     district         court     declined          to   reach     the    College

Newspapers’ remaining arguments regarding strict scrutiny or an

as-applied challenge.

           On appeal, a panel of this court reversed, holding

that, on its face, the ban does not violate the First Amendment.

See Educ. Media Co., et. al. v. Swecker, 602 F.3d 583 (4th Cir.

2010).       Because        the    underlying          district     court    opinion      was

premised   solely      on     the    College         Newspapers’      facial      challenge,

Swecker was similarly confined to that aspect of the case.                                 See

Swecker, 602 F.3d at 587 n.2. (“The district court did not reach

the college newspapers’ alternative arguments . . . .                                   Though

the college newspapers reiterate these alternative arguments on

appeal, we decline to address them in the first instance.”).

Accordingly, the panel remanded the case to the district court

for   consideration         of     the    two       remaining      challenges:      (1)    the

College Newspapers’ argument that the challenged regulation is

                                                8
subject    to,    and   fails,      strict         scrutiny       and    (2)    the   College

Newspapers’ argument that, as-applied to them, the challenged

regulation fails Central Hudson.

            The     parties      then        filed       cross    motions       for   summary

judgment    without     supplementing              the    record.        On     September    7,

2012,     the     district       court       granted        the     ABC’s       motion    and,

simultaneously, denied the College Newspapers’ motion.                                   In so

doing, the district court first rejected the College Newspapers’

contention       that   strict      scrutiny         applied,       opting       instead    to

analyze the regulation under Central Hudson.                            The district court

then held that, in light of our opinion in Swecker, it was

constrained to conclude that the challenged regulation did not

violate Central Hudson as applied to the College Newspapers.

Thus, the district court granted summary judgment in favor of

the ABC on all remaining claims.                     The College Newspapers timely

noted this appeal.

                                              II.

            We     review    a    district          court    order       granting     summary

judgment     de    novo,     viewing         the    evidence       in     the    light     most

favorable to the non-moving party.                         Lansdowne on the Potomac

Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d

187, 195 (4th Cir. 2013).

            In     reviewing        a        challenge       to     a     restriction        on

commercial      speech,     “[i]t       is    well       established      that     the   party

                                               9
seeking to uphold a restriction on commercial speech carries the

burden of justifying it.”             Edenfield v. Fane, 507 U.S. 761, 770

(1993)(internal quotation marks omitted).

                                         III.

                                          A.

             While    commercial       speech    is   protected     by        the     First

Amendment,       there     is    a     “commonsense       distinction”              between

commercial speech and other varieties of speech.                         Cent. Hudson

Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S.

557, 562 (1980).           Thus, “[t]he Constitution . . . accords a

lesser    protection        to       commercial       speech      than        to      other

constitutionally         guaranteed      expression.”             Id.        at     562-63.

Accordingly, under Central Hudson, a restriction on commercial

speech    must     withstand      “intermediate        scrutiny”        in        order   to

survive a First Amendment challenge.                  Id. at 573 (Blackmun, J.

concurring); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623

(1995).

             The     parties     agree    that     the    challenged          regulation

impacts only commercial speech.                However, the College Newspapers

argue that, despite this, Central Hudson “intermediate scrutiny”

does   not    apply.       Instead,      they     argue    that    the        challenged

regulation is subject to strict scrutiny because it allegedly

engages in both content-based and speaker-based discrimination

by singling out a narrow segment of the media, college student

                                          10
publications,         and   subjecting            that    segment        to    heightened

regulation.

              In so arguing, the College Newspapers primarily rely

on Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).                                   In

Sorrell,      the     Supreme       Court    invalidated       a     Vermont    law     that

prevented      pharmacies           from    revealing         “prescriber-identifying

information” 3 for marketing purposes.                    Vermont argued that this

law satisfied Central Hudson as it was appropriately tailored to

the important governmental aims of ensuring medical privacy and

reducing the price of prescription drugs.

              The     Supreme       Court    invalidated       the    ban,     concluding

that,    by    only      prohibiting         the       disclosure      of     prescriber-

identifying         information       for    marketing        purposes,       Vermont    had

engaged in both content-based and speaker-based discrimination.

Accordingly, the Court concluded that the Vermont law needed to

withstand     “heightened       scrutiny”         in   order    to    survive     a    First

Amendment challenge.                See Sorrell, 131 S. Ct. at 2664 (“The

First    Amendment       requires          heightened      scrutiny         whenever    the

government      creates         a     regulation         of     speech        because    of

disagreement with the message it conveys. . . .                                Commercial


     3
       “Prescriber-identifying information” is information that
identifies doctors and the drugs that they prescribe.     It is
often used as a marketing tool by pharmaceutical sales
representatives. See Sorrell, 131 S. Ct. at 2659-60.



                                             11
speech       is        no    exception.”)          (internal          quotation      marks    and

citations         omitted).           However,       the      Court    also   concluded      that

Vermont’s         ban       could    not   even     withstand         intermediate     scrutiny

under Central Hudson.                  Thus, the Court did not actually apply

“heightened            scrutiny,”      striking         the    ban    under   Central       Hudson

alone.           Id.    at    2667    (“[T]he      outcome       is    the    same   whether    a

special commercial speech inquiry or a stricter form of judicial

scrutiny is applied.”)

                 The     College      Newspapers         and    their    amici      argue    that,

like       the     regulation         at     issue       in    Sorrell,       the    challenged

regulation         here      involves       both    content-based         and    speaker-based

discrimination.                Based       on   this     alleged        discrimination,       the

College Newspapers argue that strict scrutiny applies.                                 However,

like the Court in Sorrell, we need not determine whether strict

scrutiny is applicable here, given that, as detailed below, we

too hold that the challenged regulation fails under intermediate

scrutiny set forth Central Hudson. 4




       4
       While Sorrell spoke in terms of “heightened scrutiny” as
opposed to “strict scrutiny,” the College Newspapers nonetheless
argue that strict scrutiny applies. To be sure, the question of
whether Sorrell’s “heightened scrutiny” is, in fact, strict
scrutiny remains unanswered.   However, because we conclude that
the challenged regulation in this case fails Central Hudson, we
need not attempt to answer that question here.



                                                   12
                                         B.

            Next,    we   consider      whether       the     challenged        regulation

violates Central Hudson as applied to the College Newspapers.

Under Central Hudson, 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.

Central Hudson, 447 U.S. at 566.

            Central Hudson applies to both facial and as-applied

challenges.     See Swecker, 602 F.3d at 588.                    However, the type of

challenge dictates the state’s burden of proof.                          Id.    In an as-

applied challenge, which we address here, the state must justify

the   challenged    regulation      with       regard       to    its    impact     on      the

plaintiffs. 5   Id.


      5
       The difference between a facial challenge and an as-
applied challenge lies in the scope of the constitutional
inquiry. Under a facial challenge, a plaintiff may sustain its
burden in one of two ways.      First, a plaintiff asserting a
facial challenge “may demonstrate ‘that no set of circumstances
exists under which the law would be valid, or that the law lacks
any plainly legitimate sweep.’”        Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor and City Council of Balt., ---
F.3d ---, 2013 WL 3336884, at *11 (4th Cir. July 3, 2013)(en
banc)(alterations omitted)(quoting United States v. Stevens, 559
U.S. 460, 130 S. Ct. 1577, 1587 (2010)).     Second, a plaintiff
asserting a facial challenge may also prevail if he or she
“show[s] that the law is ‘overbroad because a substantial number
(Continued)
                                         13
            Applying        Central      Hudson       to   the     facts      at    hand,   we

conclude    that      the   district      court       erred      in    holding      that,   as

applied to the College Newspapers, the challenged regulation is

constitutionally        permissible.             Rather,      we      conclude      that,   as

applied    to   the    College     Newspapers,         the    challenged           regulation

violates   the     First     Amendment.          We    address        each    of    the   four

Central Hudson prongs in turn.

                                            1.

                                  Lawful Activity

            All parties are in agreement that the first prong of

Central    Hudson,      i.e.      whether    the       regulated        speech      concerns

lawful     activity         and    is     not      misleading,           is        satisfied.

Specifically,         the    challenged          regulation           regulates         lawful

activity, as alcohol advertisements -- even those that reach a

partially underage audience -- concern the lawful activity of

alcohol     consumption.           See      Swecker,          602       F.3d       at     589.



of its applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.’”       Id. (alterations
omitted)(quoting Stevens, 130 S.Ct. at 1587).       Under either
scenario, a court considering a facial challenge is to assess
the constitutionality of the challenged law “without regard to
its impact on the plaintiff asserting the facial challenge.”
Swecker, 602 F.3d at 588. In contrast, an as-applied challenge
is “based on a developed factual record and the application of a
statute to a specific person[.]”    Richmond Med. Ctr. for Women
v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en banc).




                                            14
Additionally, the ABC has not presented any evidence that the

advertisements         implicated         by   this   regulation        are   misleading.

Thus, this prong is clearly satisfied.

                                               2.

                        Substantial Government Interest

             “Next,       we       ask     whether    the      asserted       governmental

interest is substantial.”                 Central Hudson, 447 U.S. at 566.               As

with   the      first     prong,         the   parties      are   in    agreement      that

Virginia’s stated interest in combatting underage and abusive

drinking        on     college           campuses     represents        a      substantial

governmental          interest.            See,     Swecker,      602    F.3d    at    589.

Accordingly, the second Central Hudson prong is satisfied.

                                               3.

                        Direct and Material Advancement

                                               a.

             Under Central Hudson’s third prong, the ABC must prove

that      the        challenged          regulation        directly       advances      the

government’s asserted interest.                     “This burden is not satisfied

by mere speculation or conjecture; rather, a governmental body

seeking    to    sustain       a    restriction       on    commercial        speech   must

demonstrate that the harms it recites are real and that its

restriction will in fact alleviate them to a material degree.”

Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).                               To be sure,

under this prong, we do not require a government to produce

                                               15
empirical       data        “accompanied           by     a     surfeit        of       background

information[.]”           Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,

555   (2001)        (internal         quotation        marks    omitted).           Rather,       the

Supreme       Court       has     “permitted           litigants       to     justify         speech

restrictions by reference to studies and anecdotes pertaining to

different locales altogether, or even, in a case applying strict

scrutiny,       to    justify         restrictions         based       solely       on    history,

consensus, and simple common sense.”                            Id. (internal quotation

marks and citations omitted).                      Nonetheless, the burden remains

on    the   state      to    establish        a    commercial          speech       regulation’s

efficacy,      and    a     regulation        cannot      be    sustained         “if     there   is

little      chance    that       the    restriction           will     advance      the    State’s

goal[.]”        Id. at 566 (internal quotation marks and citations

omitted).

               In     Swecker,          we     concluded          that        the       challenged

regulation satisfies the third prong because, given the general

correlation between advertising of a product and demand for that

product, it follows that a decrease in alcohol advertising on

college       campuses       will      necessarily        result        in    a     decrease      in

alcohol consumption by college students.                             Swecker, 602 F.3d at

590   (“Though        the    correlation          between        advertising         and      demand

alone    is    insufficient            to    justify      advertising          bans      in   every

situation,      here        it   is     strengthened           because       ‘college      student

publications’         play       an    inimitable        role     on    campus.”         (internal

                                                  16
citations    omitted)).         Additionally,       we     concluded        that     the

efficacy of the regulation was further substantiated by the fact

that “alcohol advertisers want to advertise in college student

publications.     It is counterintuitive for alcohol vendors to

spend their money on advertisements . . . if they believed that

these ads would not increase demand by college students.”                           Id.

(emphasis in original).

                                       b.

            On   remand     following       Swecker,       the    district         court

concluded that it was compelled to follow Swecker’s analysis on

this   prong.    We    agree.      While     it    is    true,    as   the    College

Newspapers argue, that Swecker dealt with a facial challenge and

the    present   action     involves    an       as-applied      challenge,         this

distinction is immaterial under Central Hudson’s third prong.

See United States v. Edge Broad., 509 U.S. 418, 427 (1993).

            Specifically, in Edge Broad., the Supreme Court was

faced with the question of whether a series of federal statutes

that prohibited the broadcast of lottery advertisements violated

the First Amendment as applied to a broadcaster licensed to do

business in a state that allowed lotteries.                      In analyzing the

statute under Central Hudson’s third prong, the Court noted that

it was “readily apparent that this question cannot be answered

by limiting the inquiry to whether the governmental interest is

directly    advanced   as   applied    to    a    single    person     or    entity.”

                                       17
Edge Broad., 509 U.S. at 427.                   According to the Court, “[e]ven

if there were no advancement as applied in that manner -- in

this case, as applied to Edge -- there would remain the matter

of the regulation’s general application to others -- in this

case,     to    all    other    radio     and      television    stations      in    North

Carolina and countrywide.”              Id.

               Thus, while an as-applied challenge ordinarily compels

a    reviewing         court     to     take       the      challenger’s      individual

circumstances into account when assessing the constitutionality

of    a    particular          restriction,          that     general    practice       is

inapplicable when analyzing a provision under the third Central

Hudson     prong.         Accordingly,          Swecker’s      conclusion     that     the

challenged       regulation          directly      and   materially     advances      the

State’s asserted interest is dispositive of our analysis under

the third Central Hudson prong.

                                              4.

                 Regulation More Extensive Than Necessary

               The individual circumstances of the College Newspapers

are nonetheless relevant in this appeal.                      Per Edge Broadcasting,

those circumstances are relevant under Central Hudson’s fourth

prong, to which we now turn.                  See Edge Broad., 509 U.S. at 427

(“This     is    not    to     say    that     the    validity    of    the   statutes’

application to Edge is an irrelevant inquiry, but that issue

properly should be dealt with under the fourth factor of the

                                              18
Central Hudson test.”).              Under this prong of Central Hudson, the

party       defending        the     regulation      “must      demonstrate        narrow

tailoring of the challenged regulation to the asserted interest

-- a fit that is not necessarily perfect, but reasonable; that

represents not necessarily the single best disposition but one

whose scope is in proportion to the interest served.”                             Greater

New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173,

188 (1999).

              The ABC argues that the challenged regulation does not

fail under this fourth prong because it is “reasonably tailored”

to    the    stated    aim    of     reducing     underage     and    abusive     alcohol

consumption.          Specifically, the ABC notes that the challenged

regulation does not prohibit all alcohol advertisements and is

but    one    facet     of    its    multi-faceted       approach      to    combat     the

problem of underage drinking.                   Given the dual purpose of the

regulation to combat both underage and abusive drinking, the

district court agreed.                Specifically, the district court held

that, while the challenged regulation did have the effect of

preventing the dissemination of truthful information to legal

adults, this was not unduly out-of-proportion to the second half

of    the    government’s           stated   aim:       reducing     abusive      alcohol

consumption      by    college       students     who    are   21    years   of   age    or

older.



                                             19
               We disagree.          Instead, we conclude that in this as-

applied       challenge,     “based        on   .    .   .   the    application      of    [the

challenged regulation] to [these] specific” plaintiffs, Richmond

Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir.

2009)    (en     banc),      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   Lorillard,         the      Supreme       Court        struck    down     a

Massachusetts         statute       prohibiting          tobacco     advertising      within

1,000 feet of a school.               In concluding that the statute was not

adequately tailored to pass muster under Central Hudson’s fourth

prong, the Supreme Court indicated that, while it was true that

Massachusetts had a substantial interest in preventing underage

tobacco use, it was also true that “the sale and use of tobacco

products by adults is a legal activity.                            We must consider that

tobacco       retailers       and     manufacturers           have     an     interest       in

conveying truthful information about their products to adults,

and adults have a corresponding interest in receiving truthful

information about tobacco products.”                          Lorillard, 533 U.S. at

564.

               Here, a majority of the College Newspapers’ readers

are     age    21   or    older.           Specifically,           roughly    60%    of     the

                                                20
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.             Thus, the College Newspapers have

a    protected     interest     in     printing        non-misleading          alcohol

advertisements, just as a majority of the College Newspapers’

readers have a protected interest in receiving that information.

Accordingly,      the    challenged    regulation         is    unconstitutionally

overbroad.

           In Pitt News v. Pappert, the Third Circuit reached a

similar conclusion on similar facts.                 See 379 F.3d 96 (3d Cir.

2004).   That case involved a Pennsylvania Liquor Control Board

regulation     prohibiting     alcohol        advertisements         in   college    or

university    publications.          The      Pitt   News,     the    University      of

Pittsburgh’s      student    newspaper,        brought    an    action       under   42

U.S.C. § 1983, alleging that the regulation violated the First

Amendment as applied.           The Third Circuit agreed, invalidating

the prohibition under Central Hudson’s fourth prong and noting

that “[m]ore than 67% of Pitt students and more than 75% of the

total University population is over the legal drinking age and,

in   Lorillard,    the    Supreme     Court     held   that     a    restriction     on

tobacco advertising was not narrowly tailored in part because it

prevented the communication to adults of truthful information

about products that adults could lawfully purchase and use.”

Id. at 108.

                                         21
            In analyzing the challenged regulation under Central

Hudson’s fourth prong, the district court concluded that the

fact that a majority of the College Newspapers’ readers were age

21 or older did not render the challenged regulation overbroad

because the regulation was designed, in part, to prevent abusive

drinking by persons who are of legal age to drink.                              However,

regardless       of     the     importance     of    this     interest,       the    ABC’s

approach remains overbroad under Supreme Court precedent.

            In         Sorrell,     Vermont        attempted        to     justify        its

prohibition        on     the      commercial       disclosure        of     prescriber-

identifying information based on the fact that the use of such

information       by    pharmaceutical        representatives         “undermines         the

doctor-patient relationship by allowing detailers to influence

treatment decisions.”             Sorrell, 131 S. Ct. at 2670.               The Supreme

Court   rejected         this     argument,       observing    that       “‘[t]he    First

Amendment directs us to be especially skeptical of regulations

that seek to keep people in the dark for what the government

perceives to be their own good.’”                      Id. at 2671 (quoting 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996)).

Thus, the Court held that states may not “seek to remove a

popular     but        disfavored     product        from     the        marketplace       by

prohibiting       truthful,       non-misleading       advertisements.”             Id.    at

2670.     Accordingly, the Court invalidated the Vermont ban under

Central Hudson.

                                             22
           Here, the portion of the challenged regulation seeking

to   prevent    the    dissemination        of   alcohol    advertisements      to

readers age 21 or older does exactly what Sorrell prohibits: it

attempts to keep would-be drinkers in the dark based on what the

ABC perceives to be their own good.                    Therefore, the district

court   erred   in    concluding   that      the   challenged   regulation     is

appropriately    tailored    to    achieve       its    objective   of   reducing

abusive college drinking.

                                     IV.

           Because a regulation of commercial speech must satisfy

all four Central Hudson prongs in order to survive an as-applied

challenge, and the regulation in question here does not satisfy

the fourth prong, the challenged regulation violates the First

Amendment as applied to the College Newspapers.                 Therefore, the

judgment of the district court is

                                                                         REVERSED.




                                       23
SHEDD, Circuit Judge, dissenting:

       When    this    case     was    first       before    us     on       the    college

newspapers’ facial challenge under Central Hudson Gas & Electric

Corp. v. Public Service Commission of New York, 447 U.S. 557

(1980), we explained why 3 Va. Admin. Code § 5-20-40(A)(2) was a

reasonable fit to Virginia’s interest in combating underage and

abusive drinking on college campuses, see Educ. Media Co. at Va.

Tech, Inc. v. Swecker, 602 F.3d 583, 590–91 (4th Cir. 2010).

The record, and my view of the regulation, have not changed.

       Virginia has devised a comprehensive, multifaceted approach

to combat what is acknowledged to be a serious problem—underage

and    abusive     drinking,    as    well    as   the    associated         problems    of

increased fatal and nonfatal motor vehicle crashes, vandalism,

suicide attempts, homicide, non-motor vehicle-related injuries,

sexual violence, and unprotected sexual encounters.                                See J.A.

325.    For example, officials at the University of Virginia have

undertaken         alcohol-education         efforts        aimed    at        first-year

students,      underage   students,        student     athletes,     fraternity         and

sorority members, and the University community in general.                              See

J.A. 214–18, 239–44.           Similar efforts have been made at Virginia

Tech.    See J.A. 115–212.

       This comprehensive plan adopted by Virginia only minimally

impacts    commercial     speech      by     attempting      to   limit       advertising

aimed     at   a    targeted     market       which      includes        a    substantial

                                           24
percentage of readers for whom use of the product is illegal.

Virginia’s         approach   does    not        prohibit   all    advertising        for

alcohol which will reach this audience; it is a minor limitation

on    such    advertising      in    college        newspapers      as   part    of    a

comprehensive         plan    to     address        a   very      serious      problem.

      Therefore, I believe that § 5-20-40(A)(2) is a reasonable

fit   to     the    state’s   goal    of     reducing       underage     and    abusive

drinking.      For these reasons, I respectfully dissent.




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