Court throws out Pa. alcohol ad ban

PENNSYLVANIA — In a ruling five years in the making, a federalappeals court ruled in July that a state law banning paid alcohol advertisementsin student media was a violation of the First Amendment.The landmarkruling paves the way for other student media outside of Pennsylvania to fightsimilar laws or restrictions.

The law, known as Act 199, was enacted bythe Pennsylvania legislature in 1996 and prohibited the advertisement ofalcoholic beverages in any medium that is “published by, for or in behalf or anyeducational institution.” 

Under the act, college newspapers could not runadvertisements if they contained any information about alcohol.Inconjunction with the American Civil Liberties Union of Pennsylvania, The PittNews, a student newspaper at the University of Pittsburgh, filed a lawsuitagainst the Pennsylvania attorney general, the Pennsylvania State Police and thePennsylvania Liquor Control Board in 1999. 

The newspaper sued after alocal restaurant was fined for placing alcohol-related ads in the publication.After the fine, the newspaper said many local businesses stopped advertising,which resulted in a $17,000 decrease in newspaper’s annual advertisingrevenue.A first-time violation of the law could have resulted in amaximum fine of $500 and a three-month prison sentence foradvertisers.The unanimous three-judge panel of the U.S. Court ofAppeals for the Third Circuit said that while the law intended to curb underagedrinking, students still were exposed to advertisements on the radio, televisionand in other community nonstudent publications distributed oncampus.

“The suggestion that the elimination of alcoholic beverage adsfrom the Pitt News and other publications connected with the Universitywill slacken the demand for alcohol by [University of Pittsburgh] students iscounterintuitive and unsupported by any evidence that the Commonwealth hascalled to our attention,” the court said.

The court also said the law isnot tailored to achieve its goal of curtailing underage or abusive drinking,noting that 67 percent of the students on campus were of legal drinking age, aswere 75 percent of the total university population. The panel also foundthe law to be unconstitutional because it placed a financial burden on a narrowsegment of the media — college and university publications.Thecourt’s ruling overturns several previous rulings that found the law to bewithin the bounds of the U.S. Constitution.

The U.S. District Court forthe Western District of Pennsylvania ruled in 1999 that the newspaper did nothave standing to challenge the statute because the act only targeted advertisersand not the student media. The newspaper appealed the decision, however, athree-judge panel of U.S. Court of Appeals for the Third Circuit rejected theappeal in June 2000, saying the newspaper could not argue that the FirstAmendment rights of businesses were being violated.

Lawyers for thenewspaper petitioned the U.S. Supreme Court in November 2000 to hear the case,but the high court declined and sent the case back to the federal district courtin January 2001

The federal district court ruled against newspaper forthe second time in February 2003, granting summary judgment to the defendants.The court said that student newspapers have a First Amendment right to determinetheir content, but ruled that The Pitt News did not show that the actviolates these rights. The court stressed the law was directed at advertisersand that student publications were not punished for printing alcohol-relatedads.The newspaper appealed that decision, and the federal appeals courtheard oral arguments on the appeal in January.

Several mediaorganizations, including the Pennsylvania Newspaper Association, the ReportersCommittee for Freedom of the Press and the Student Press Law Center filed afriend-of-the-court brief in the case in support of the PittNews.

A spokesman for the Pennsylvania attorney general’s office saidin a published report that the state has not decided whether to appeal theruling.Vic Walczak, an attorney for The Pitt News, said thecourt’s ruling is especially important to student media at the collegelevel.

“It’s not often that you lose arguments nine times and win on the10th try,” Walczak said. “The case itself is very important because it’s aboutwho decides what goes into the newspaper. Is it the government, or is it thestudent editors? The court [said to the government] get out and stay out of thenewsroom.”

Bethany Litzinger, the newspaper’s business manager, said thenewspaper staff is pleased with the outcome of the lawsuit. She said the stafflooks forward to contacting advertisers that stopped running ads in thenewspaper because of the law.

Litzinger said the students at thenewspaper owe much thanks to the newspaper’s advisers for keeping eachgeneration of editors up to date on the case.

“Eight years after this lawwas enacted, a court has finally recognized how irrational and unconstitutionalit was,” said SPLC executive director Mark Goodman. “The staff ofThe Pitt News deserves much credit for its willingness to fightthis over the course of many years.  College student newspapers aroundthe state will be the beneficiaries of its courage.”

Three other states– New Hampshire, Utah and Virginia — prohibit alcohol advertising instudent publications at public universities, according to a 2003 study by theGeorgetown University Center on Alcohol Marketing and Youth.Because theU.S. Court of Appeals for the Third Circuit only has jurisdiction overPennsylvania, New Jersey, Delaware and the U.S. Virgin Islands, the ruling isnot binding in the three states with bans on alcohol advertising in studentmedia. 

Courts, however, often look to others in different federal circuits forguidance on cases.In a similar case, a state court rejected a claim in1977 that a student newspaper at the University of Kentucky was bound by a stateregulation that restricted the advertisement of alcoholic beverages in aneducational institution’s newspaper. The court ruled that the newspaper wasindependent of university control, and thus was not subject to therestriction.

View the court’s decision in The Pitt News v. Pappert, No. 03-1725 (3rd Cir., July 29, 2004).Download Adobe Acrobat Reader to view document.Read previous coverage: