Court upholds state ban on alcohol advertising in college newspapers

PENNSYLVANIA — Across the campus of the University of Pittsburgh,free copies of The Pitt News, the school’s independent student newspaper,rest in bins waiting to be picked up by the university community.

Just as easily accessible to students are copies of other free, commercialnewspapers, which in some places sit right next to stacks of The PittNews. Anyone walking past has the freedom to choose which paper he orshe wants to read.

But businesses in the state do not have the same freedom to select inwhich paper they want their advertisements to appear, after a June rulingby the U.S. Court of Appeals for the Third Circuit upheld the constitutionalityof Pennsylvania’s Act 199.

The three-judge panel rejected The Pitt News’ claim that the act,which prohibits businesses from advertising alcoholic beverages in anypublication published or produced “by, for or in behalf of any educationalinstitution,” violates the student newspaper’s First Amendment rights.

Although the court recognized the validity of the newspaper’s complaints– among them that the independent publication, which relies on advertisingrevenue as its sole source of funding, has lost well over $20,000 in adincome since the act was first enforced in 1997 and has subsequently beenforced to shorten the length of the paper and forgo equipment updates –it ruled that the issue is more economic than constitutional.

“The fact that The Pitt News has demonstrated a connection betweenthe enforcement of Act 199 and the reduction in its advertising revenuesfrom purveyors of alcoholic beverages, along with the resulting reductionin the length of its publication, does not mean that one of its constitutionallyprotected interests has been injured,” Judge Richard L. Nygaard said inthe opinion for the unanimous panel in Pitt News v. Fisher, 215 F.3d354, (3rd Cir. 2000). “This amounts to nothing more than an incidentaleconomic effect of a regulation aimed at closely regulated third parties.Act 199 does not directly restrict the content of The Pitt News.”

Current Pitt News editor Rahan Nasir said that although the paperhas begun to recover from the economic loss, the restrictions the act placeson its First Amendment rights are far more severe.

“There has been a financial impact, of course, but other than the financeswe are hurt by the fact that the state is trying to stifle our free speechby attacking our advertisers,” Nasir said.

While the judges admitted that student newspapers do have a legitimateFirst Amendment right to make their own choices regarding content, botheditorial and advertising, the appellate court ruled the newspaper couldnot prove that Act 199 threatened those rights.

The panel said that under the state 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 not includedin the ad. They may also publish information about alcoholic beveragesas long as they are not compensated.

A district court ruled in July 1999 that the paper did not have standingto challenge the statute because the act only targeted advertisers andnot the student media. The appellate court also prohibited The PittNews from arguing that the First Amendment rights of businesses werebeing violated.

According to the court’s opinion, any business seeking to publish alcohol-relatedadvertisements has ample opportunity to reach its audience through otherforms of media.

The opinion said Act 199 should not account for any appreciable dilutionof adults’ access to alcohol advertisements, even though the statute wasenacted in an attempt to reduce “problems of underage drinking on campus,as well as binge drinking on campus by both adults and minors.”

Advertisers who are found guilty of violating the act face a $100 to$500 fine for the first offense. A minimum three-month jail sentence ismandatory for a second violation.

Vic Walczak, executive director of the Greater Pittsburgh American CivilLiberties Union and the attorney handling the newspaper’s case, said thecourt’s decision will continue to have a negative impact on student newspapers.

“I don’t understand how a law that criminalizes lawful speech in a categoryof newspapers does not offend the First Amendment,” Walczak said.

Because advertisers are still permitted to place their alcohol-relatedads in commercial newspapers, Nasir said he thinks the court is unfairlydiscriminating against student publications and college students.

“We have a demographic figure that says that 75 percent of our readersare over the age of 21,” Nasir said. “If you’re in college, that meansthat you’re a little bit older and a little bit more mature, and by implementinga law like this, the state of Pennsylvania is kind of saying, ‘No, you’renot. You’re just a bunch of kids and you’ve got this little paper but wedon’t respect it at all.’ I think it’s a real tragedy that they have thisin place because I’m afraid of what might happen next.”

Walczak has asked the full Third Circuit to rehear the case and is currentlyawaiting a decision by the court.

The full text of the decision is available on the Villanova UniversitySchool of Law’s Web site at