Federal court of appeals upholds state ban on alcohol ads in college newspapers

PENNSYLVANIA — The U.S. Court of Appeals for the ThirdCircuit ruled Tuesday that a state ban on advertising alcoholin college publications does not constitute a violation of a studentnewspaper’s First Amendment rights.

The three-judge panel rejected an appeal from The Pitt News,thestudent newspaper at the University of Pittsburgh, which soughta preliminary injunction against enforcement of Pennsylvania’sAct 199. The act prohibits businesses from advertising alcoholicbeverages in any publication published or produced "by, foror in behalf of any educational institution."

The staff of The Pitt News,an independent newspaperthat relies on advertising revenue as its sole source of funding,claims it lost more than $17,000 in ad income between the timethe act was first enforced in 1997 and the suit was filed in in1999, and was subsequently forced to shorten the length of thepublication.

Although the court recognized the validity of the newspaper’scomplaints, it ruled that the issue is more economic than constitutional.

"The fact that The Pitt Newshas demonstrated aconnection between the enforcement of Act 199 and the reductionin its advertising revenues from purveyors of alcoholic beverages,along with the resulting reduction in the length of its publication,does not mean that one of its consitiutionally protected interestshas been injured," Judge Richard L. Nygaard said in the opinionfor the unanimous panel. "This amounts to nothing more thanan incidental economic effect of a regulation aimed at closelyregulated third parties. Act 199 does not directly restrict thecontent of The Pitt News."

While admitting that student newspapers do have a legitimateFirst Amendment right to make their own choices regarding content–botheditorial and advertising–the appellate court claimed the newspapercould not prove that Act 199 threatened those rights.

The panel said that under the Liquor Control Board’s regulations,student newspapers in Pennsylvania are still free to accept advertisingfrom businesses that sell alcohol as long as the alcohol is notincluded in the ad. They may also publish information about alcoholicbeverages from businesses as long as they are not compensated.

A district court first ruled in July that the paper did nothave standing to challenge the statute because the act only leviedpunishment against the advertisers and not the student media.On Tuesday, the appellate court refused to allow The Pitt Newstoargue that the First Amendment rights of businesses were alsobeing violated.

"We’re disappointed," said Vic Walczak, executivedirector of the Greater Pittsburgh American Civil Liberties Unionand the attorney handling the newspaper’s case. "We havenot finished analyzing the decision and the opinion. We have notdecided what our next step is going to be and whether we’re goingto ask the Supreme Court to take it or not."

To view a copy of the decision in The Pitt News v. Fisher,goto http://www.splc.org/resources/pittnews.html.