VIRGINIA — Alegal challenge to Virginia’s ban on alcohol-related advertisements in collegepublications is still brewing.
Two student newspapers, the University of Virginia’s Cavalier Daily and Virginia Tech’s Collegiate Times, filed a lawsuitchallenging the ban in June 2006, claiming the regulation violated studenteditors’ First Amendment right to print advertisements. The publications also claimeda significant financial burden as a result of the ban.
Thelawsuit aims to overturn Virginia Administrative Code Section 5-20-40, whichprohibits any advertisements that mention alcohol in “college studentpublications” unless they are ”in reference to a dining establishment.”It outlines specific words that can and cannot be used in the ads, andprohibits the promotion of any type of happy hour.
Theregulation also defines a ”college student publication” as one that is runprimarily by students, is sanctioned by the college or university and “isdistributed or intended to be distributed primarily to persons under 21 yearsof age.”
The case made its way through a federal district court,the 4th U.S. Circuit Court of Appeals and even up to the U.S. Supreme Court –which declined to hear the case, sending it back to the district court and JudgeHannah Lauck.
It’s now a waiting game, said Rebecca Glenberg, legaldirector for the American Civil Liberties Union of Virginia. Glenbergrepresents the two student publications.
“Both sides have submitted [motions] for summary judgmentand the court so far has not set a hearing,” Glenberg said. “It’s not clearwhether they will set a hearing or just decide it on the briefs, but we haven’theard anything further.”
Glenberg said two arguments remain after the FourthCircuit decision, which in April 2010 upheld the ban on alcohol-related advertisementsin student newspapers. The appeals court found the ban, on its face, satisfiesFirst Amendment standards for restricting “commercial speech.” Lauck must nowrule on the newspaper’s other legal theories.
“One [argument] is that the regulations are unconstitutionalbecause they single out a narrow segment of the media for special burdens,” shesaid. “The other is that they are unconstitutional… because most of the readersof these two newspapers are over the age of 21.”
Lawyers for the Virginia Department of Alcoholic BeverageControl (ABC) argue the regulations are necessary to combat underage drinking.They cite a report by the Institute of Medicine calling “for all colleges anduniversities to ban all alcohol advertising and promotion on campus.”
“Empirical research has shown that both alcoholadvertising bans and alcohol price can have a significant effect on reducingalcohol abuse, that alcohol advertising bans can lower alcohol consumption andthat alcohol advertising increase youth consumption,” according to thedepartment’s legal brief.
The department also argues the publications are targeted toundergraduate students, many of whom are under 21, and the judge should deferto ABC’s interpretation of its own rules.
Glenberg said even if the judge sides with thenewspapers, deeming the ban unconstitutional, there will likely be additionalproceedings. She expects the state would appeal to the Fourth Circuit again.
Frank LoMonte, executive director of the Student PressLaw Center, said if the ban is upheld, the effects could trickle into otherstates.
“For now, this is just a Virginia issue,” LoMonte said.“But if Virginia is given this authority, other states might try it.”
LoMonte referenced a similar case out of Pennsylvania thatinvolved the University of Pittsburgh’s student newspaper, The Pitt News. In 2004,the 3rd U.S. Circuit Court of Appeals ruled there was no evidence that banningads in student newspapers would have the desired effects. The court also foundthe Pennsylvania regulation unconstitutional because it discriminated against anarrow segment of the media.
Virginia argues that case was wrongly decided and is notbinding in the Fourth Circuit.
“You can’t single out a subsection of the media,” LoMontesaid. “You’re cutting out an important source of revenue at a time whennewspapers are struggling to keep afloat.”
By Sydni Dunn, SPLC staff writer