Virginia alcohol advertising ban could be Supreme Court-bound

Two college newspapers are asking the U.S. Supreme Court to reverse a federal appeals-court ruling that upheld a Virginia regulation restricting what advertisers can say about alcoholic beverages in student publications.

Virginia Tech’s Collegiate Times and the University of Virginia’s Cavalier Daily, represented by counsel from the ACLU, filed a petition Aug. 23 asking the Court to hear the case of Educational Media Co. v. Swecker in its 2010-11 term.

The newspapers are challenging a 2-1 decision by the Fourth U.S. Circuit Court of Appeals that found no First Amendment violation in Virginia’s alcoholic beverage regulations directed at campus publications. Under the regulations, only restaurants are allowed to advertise alcoholic beverages in student-edited publications, and then only using generic terms such as “beer” and “wine,” with no reference to price. (The SPLC filed a brief in support of the student publications at the Fourth Circuit.)

The Supreme Court rarely grants petitions for review, but the possibility presents an interesting quandary for the status of Justice Samuel Alito, who is normally an outspoken defender of the First Amendment.

While on the Third Circuit, Justice Alito authored the 2004 opinion in Pitt News v. Pappert that struck down a similar Pennsylvania ban on First Amendment grounds. Although Pitt News never came before the Supreme Court, bringing Swecker to the Court could invite renewed scrutiny of the Third Circuit case. If Justice Alito concludes that the two cases are irreconcilable, and that the Swecker ruling can be affirmed only if the justices rule that Pitt News was wrongly decided, then he may feel compelled to refrain from voting. That would deprive First Amendment advocates of a valuable ally.

Besides pointing out the conflict between the Swecker and Pitt News cases, the ACLU petition also argues that the Fourth Circuit made two fundamental legal errors that justify Supreme Court review.

First, the Circuit’s two-judge majority did not require the state to prove that restricting ads only in student publications actually produces any significant improvement in underage drinking and binge drinking, which is the rationale the state gave for singling out student media. There was no evidence that drinking on campus is any less problematic in Virginia than in comparable states without advertising restrictions, and the state could produce no studies or expert testimony documenting any cause-and-effect link.

Second, the Circuit panel ignored the existence of alternative anti-alcohol-abuse measures – such as cautionary safe-drinking ads – that are proven to be more effective than an advertising ban, with no adverse First Amendment hangover. The majority judges concluded that the ban did little harm to First Amendment interests because it was “targeted” to publications read by those under 21, but (as the ACLU’s petition argues) the evidence in fact showed otherwise. At least half of the readers of the Collegiate Times and Cavalier Daily are of legal drinking age, meaning that Virginia’s restrictions are depriving thousands of readers of accurate information about a product that is legal for them to purchase.

The Court is under no immediate time constraint to decide whether to take the case, which would be heard, if at all, sometime in early 2011.