Federal judge upholds Virginia ban on alcohol advertisements in college publications

VIRGINIA – A federal judge upheld a Virginia ban on advertisements for alcohol in college papers last week, finding that the government’s goal in fighting underage drinking outweighs newspapers’ First Amendment right to publish alcohol advertising.

The decision is the latest in a six-year-long battle between Virginia Tech’s Collegiate Times, the University of Virginia’s Cavalier Daily and Virginia’s Department of Alcoholic Beverage Control. The papers sued in 2006 claiming the ban was in violation of the First Amendment and also causing serious financial burden.

The regulation, set by the ABC board, prohibits the advertising of alcoholic drinks in any college student publication except in reference to a restaurant and only then in generic terms.

Rebecca Glenberg, an attorney with the American Civil Liberties Union representing the two papers, said the papers don’t plan to give up on the case now.

“We’re disappointed in the ruling and we attend to appeal,” Glenberg said. “We believe the regulation unconstitutionally discriminates against student newspapers.”

This marks the second time the district court has heard the case. The Court of Appeals for the Fourth Circuit previously ruled in favor of the ABC Board. The Supreme Court declined to hear the case and instead sent it back to district court for a ruling on the constitutionality of the ban in the specific case of the papers and to determine if it was discriminatory in singling out college publications.

In her decision, Judge Hannah Lauck relied on Supreme Court precedent established in Central Hudson v. Public Service that gives First Amendment rights to commercial speech in relation to the government’s interest to the restriction.

Under the Central Hudson test, the ABC board’s ban is legal because the board has “substantial interest in combating the serious problem of underage drinking and abusive drinking by college students,” Lauck wrote.

The Fourth Circuit’s ruling represents a split from the Third Circuit’s 2004 ruling in Pitt News v. Pappert, where then-Circuit Judge Samuel Alito rejected an alcohol ban in Pennsylvania. Among other reasons in that ruling, Alito wrote that the Central Hudson test was not satisfied because the idea that removing alcohol ads from student publications was “counterintuitive and unsupported by any evidence that the Commonwealth has called to our attention.”

By Jordan Bradley, SPLC staff writer. Contact Bradley by email or at (703) 807-1904 ext. 124.