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Appeals Court Upholds Ad Ban

April 12, 2010

A federal appeals court on Friday ruled, 2 to 1, that Virginia's alcohol regulatory board can ban alcohol-related advertisements in student newspapers. The ruling could expand a debate with both First Amendment ramifications and a significant economic impact on the college press. The appeals court reversed a lower court's ruling and the new decision conflicts with one from a different appeals court, which in 2004 found a similar ban in Pennsylvania to be in violation of the First Amendment.

The Virginia regulations were challenged by The Collegiate Times and The Cavalier Daily, the student newspapers at Virginia Tech and the University of Virginia, respectively. They argued that the state rules violated the First Amendment rights of bar owners and of the newspapers to engage in commercial speech. The newspapers also noted that the regulations would cost each of them about $30,000 a year -- a significant sum in the challenging economics of the student news media.

The ruling by the U.S. Court of Appeals for the Fourth Circuit analyzed the dispute by applying a variety of tests used by other courts to evaluate restrictions on commercial speech. One category of advertising that courts have been wiling to ban is illegal activity -- and Virginia's alcohol board has stressed that underage drinking, however common, is illegal. But the appeals court noted that the readers of student newspapers include students who are 21 and older, not just those who are underage, so at least some of the targets of bar advertisements would be of legal age, eliminating any argument that the ads should be barred for promoting illegal activity.

The appeals court then went on to consider other tests for the legality of the ad ban, focusing on whether the regulations were reasonably linked to appropriate government needs. On these issues, the appeals court backed Virginia's argument that the ban was needed.

There is a logical link, the court found, between advertising in student papers and students' use of alcohol. "[A]lcohol vendors want to advertise in college student publications. It is counterintuitive for alcohol vendors to spend their money on advertisements in newspapers with relatively limited circulation, directed primarily at college students, if they believed that these ads would not increase demand by college students," said the decision. "The college newspapers fail to provide evidence to specifically contradict this link or to recognize the distinction between ads in mass media and those in targeted local media."

The regulations are an appropriate part of "a comprehensive scheme attacking the problem of underage and dangerous drinking by college students," said the ruling, by Judge Dennis W. Shedd.

A dissent in the case, by Judge Norman K. Moon, argued that the majority decision underestimated the significance of the mixed readership of college papers, in which most readers are of legal age. He noted that a majority of students at these universities are 21 or older, and just about all faculty members and other readers are of legal age, so these newspapers cannot be viewed as primarily focused on those who don't have the legal right to drink.

Judge Moon also cited a decision by the U.S. Court of Appeals for the Third Circuit, in 2004, that threw out a similar ban in Pennsylvania. That decision came in a successful challenge from The Pitt News, the student newspaper at the University of Pittsburgh. That decision said that there was no evidence that banning ads in student papers would do any good.

"Even if Pitt students do not see alcoholic beverage ads in The Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh newspapers that are displayed on campus together with The Pitt News. The suggestion that the elimination of alcoholic beverage ads from The Pitt News and other publications connected with the university will slacken the demand for alcohol by Pitt students is counterintuitive and unsupported by any evidence... ."

That decision's author was Judge Samuel Alito, prior to his elevation to the U.S. Supreme Court.

Similar arguments were made by The Collegiate Times, in an editorial (before Friday's ruling) explaining why it wanted the right to run alcohol ads, "in the name of the First Amendment and good business sense."

Rebecca Glenberg, legal director of the American Civil Liberties Union of Virginia, which handled the case for the student newspapers, issued a statement saying that an additional appeal was possible. She said of Friday's ruling: "The effect of this regulation that the circuit court upheld was to substantially diminish the student newspaper's revenue, which is almost totally based on advertising. Perhaps more importantly, it interferes with the editorial decision making of students, editors, and journalists."

 

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