VIRGINIA –Two college student newspapers are challenging the constitutionality of aVirginia state regulation that prohibits college student publications from publishingalcohol ads.
The American Civil Liberties Union of Virginia filed alawsuit in the federaldistrict court in Richmond yesterday on behalf of the
Collegiate Times, student newspaper atVirginia Tech, and The Cavalier Daily,student newspaper at the University of Virginia. The lawsuit seeks to overturnVirginia Administrative Code, Section 5-20-40,arguing it violates the students’ First Amendment rights.
Theregulation prohibits any advertisements that mention alcohol in “college student publications”unless they are ”in reference to a dining establishment.” It defines ”college student publication” as one that is edited and published primarily by students, is sanctioned by the college or university and ”which is distributed or intended to be distributed primarily to persons under 21 years of age.”
The regulation also limits such references to the terms ”’A.B.Con-premises,’ ‘beer,’ ‘wine,’ ‘mixedbeverages,’ ‘cocktails,’ or any combination of thesewords,” and specifically prohibits the phrase ”Happy Hour”.
Mike Slaven, editor in chief ofThe Cavalier Daily, said the regulation hasforced them to turn down some advertisers, which he said deprives the paper of a”significant source of revenue.”
”Our papersubsists wholly on advertising, so when a segment of the community can’tadvertise with us, it hurts our bottom line,” Slaven said.
While Slaven said the bottom line is clearly a factor in pursuing alawsuit, he said he’s mostly concerned with the regulation’s implicationson students’ First Amendment rights.
”The first andforemost reason we’re in the case is because we believe in freedom ofpress and it’s being unfairly violated in this instance,” Slavensaid.
Rebecca Glenberg, lead attorney for the ACLU of Virginia, saidshe received a letter from the CollegiateTimes in the fall expressing concern about the regulation. The ACLU then sent aletter to the Virginia Department ofAlcoholic Beverage Control in September requesting that it stop enforcing theregulation. The Virginia ABC did not respond, prompting thelawsuit.
Glenberg said the regulation violates the First Amendment onmultiple levels.
”[The regulation] imposes financial burdens on aparticular segment of the press,” Glenberg said. ”It also interfereswith freedom of speech because it prevents the truthful advertising of a lawfulproduct.”
Slaven and Glenberg each expressed reserved optimismdue to a 2004 decision in the3rd U.S. Circuit Court of Appeals, which found that a similar law inPennsylvania violated the First Amendment.
”Of courseit’s always impossible to predict these things,” Glenberg said.
”But I feel we have a strong case, and that the 3rd Circuit case isenormously helpful and should be very persuasive precedent tocourts.”
The three-judge panel’s opinion inThe Pitt News v. Pappert, written bynow-Supreme Court justice Samuel Alito, said, ”Imposing a financial burdenof the speaker based on the content of the speaker’s expression is acontent-based restriction of expression and must be analyzed assuch.”
The Pennsylvania law was designed to curb the amount of alcohol advertising directed to students under age 21. But of the university’s more than 25,000 students, at least two-thirds were old enough to drink, according to the opinion.
The Virginia lawsuit names as defendants thecommissioners and chief operating officer of the Virginia ABC, as well as thedirector of the Law Enforcement Bureau of the commission.
Beth Stone,a spokeswoman for the Virginia ABC, said as of 10 a.m. today, they had not yetbeen served with the lawsuit. Once the Virginia ABC receives the lawsuit,Glenberg said it will have 20 days torespond.