Virginia student newspapers challenging state alcohol advertising ban

VIRGINIA — College newspapers in the state may be allowed to solicit new advertisers if a request from the American Civil Liberties Union of Virginia to throw out a decades-old ban that prohibits alcohol advertising in student publications is granted.

ACLU Legal Director Rebecca Glenberg asked a federal judge last week to grant a summary judgment in favor of two Virginia university student newspapers that say the ban restricts their free-speech rights. Virginia Tech University’s Collegiate Times and the University of Virginia’s Cavalier Daily filed a joint lawsuit in June 2006 against the Virginia Department of Alcoholic Beverage Control.

“The law really intrudes on college newspapers’ right to decide what to print,” Glenberg said in a phone interview. “Deciding what to print and what not to print goes to the very core of the freedom of the press as protected in the First Amendment. College newspapers, like any other newspaper, should be allowed to decide for themselves what is appropriate to print.”

The regulation, Virginia Administrative Code Section 5-20-40, adopted in 1988, is aimed at discouraging underage drinking. However, the newspapers assert that little evidence exists to prove the ban actually helps the state reach that goal, citing a report from the National Institute on Alcohol Abuse and Alcoholism.

The state, not the newspapers, has the burden of proof in this case, said Glenberg, who advocates other methods of curbing underage drinking, such as counter-advertising and increased taxation.

David Clementson, a spokesman for the attorney general who is representing the ABC, said the connection between the advertising of alcohol and alcohol consumption is well established.

“At a time when there is increasing concern over the public safety and health impacts of underage drinking on college campuses, it is imperative that the prohibition on specific alcohol ads in college papers remains in force,” Clementson said in an e-mail.

Clementson added that the speech in question is commercial speech and is treated differently from private speech.

“The attorney general believes this regulation is constitutional, advances a specific government interest and will continue to vigorously defend it,” he said.

In addition to their free-speech rights, the newspapers say the ban imposes a financial burden. In the motion, the newspapers estimate that the ban causes them to lose up to $30,000 in advertising annually.

The Collegiate Times reports in the motion that it would use that revenue to expand educational activities, including salaries for advising personnel, travel to conferences, training programs, guest speakers and teaching materials. The Cavalier Daily reports that it would use the money to pay printing costs and rent, as well as finance equipment upgrades and purchases, reporters’ travel, association and contest fees, and utility fees.

The newspapers also note in the motion that other publications not subject to the ban, such as The Roanoke Times and The Hook, are widely available on campus.

In 2004, Pitt News, the student newspaper at the University of Pittsburgh, successfully challenged similar restrictions. The Third U.S. Circuit Court of Appeals ruled that the ban placed an unfair financial burden on student-run publications and hindered their right to free speech while doing little to achieve its goal. The Third Circuit’s opinion was written by U.S. Supreme Court Justice Samuel Alito, a Third Circuit judge at the time.

Glenberg said she expects a ruling in the next several weeks.

By Jenny Redden, SPLC staff writer

Educ. Media Co. at Virginia Tech v. Swecker, No. 06-00396 (E.D. Va. filed May 8, 2006).

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