Federal Appeals Court Urged to Strike Down Virginia’s Discriminatory Alcohol Advertising Restrictions

Contact: Frank D. LoMonte, executive director
703.807.1904 / director@splc.org

Groups representing the college media are asking a federal appeals court to declare that the First Amendment prohibits Virginia from enforcing a rule that limits ads for bars and alcoholic beverages in newspapers serving a college student audience.

The Student Press Law Center filed a friend-of-the-court (“amicus”) brief Nov. 28 with the Fourth U.S. Circuit Court of Appeal in Richmond, Virginia, in the case of Educational Media Company at Virginia Tech, Inc. v. Insley. The SPLC’s brief supports a case initially brought by the American Civil Liberties Union of Virginia on behalf of the University of Virginia’s The Cavalier Daily and Virginia Tech’s Collegiate Times.

The two newspapers filed suit against the Virginia Department of Alcoholic Beverage Control in 2006, claiming that ad restrictions not only violate the newspapers’ right to free speech, but also cost the newspapers valuable ad revenue. The newspapers contend they each stand to lose upward of $30,000 annually in revenue, causing an undue financial hardship on them if the regulation is not overturned. The regulation allows only very limited references to alcohol (approved words such as “beer” and “wine”) in advertisements for restaurants, not bars.

In September, U.S. Magistrate Judge Hannah Lauck upheld the ban, finding that the government’s goal in fighting underage and excessive binge drinking outweighs the newspapers’ First Amendment right to publish alcohol advertising. The judge ruled that the ads, as “commercial speech,” were entitled only to minimal constitutional protection.

In the brief, the SPLC points out that the regulation is both ineffective – it prohibits mentioning specific bars, cocktails and drink prices in advertisements but not in feature stories or reviews, which might be even more persuasive than ads – and discriminatory, because it covers only newspapers whose content is designed to appeal to readers under 21, even though those readers can learn about alcohol through national magazines, websites and numerous other non-regulated sources.

If the district judge’s decision is not reversed, the SPLC argues, “The Virginia regulation will … impose unfair and undue burdens on college newspapers, despite their important role in furthering the principles underlying democracy and the First Amendment.”

The brief argues that the Virginia regulation runs counter to a recent Supreme Court ruling, Sorrell v. IMS Health, Inc., in which the Court held that regulators may not enforce content-based restrictions that selectively disadvantage only certain speakers – even where the laws target only commercial speech.

“College student media are being asked to carry more and more responsibility for meeting their communities’ basic needs for news and information. In this rapidly changing media environment, it is arbitrary and counterproductive to economically cripple ‘college newspapers’ when information about alcohol is universally available elsewhere,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center.

The SPLC’s brief was joined by College Newspaper Business and Advertising Managers (“CNBAM”), a national organization of college newspaper business staffs that represents more than 150 student newspapers with a circulation of over 1.4 million and more than $50 million in annual ad sales.

The brief was prepared and filed by volunteer legal counsel from the Washington, D.C., office of Jenner & Block LLP. The legal team included partner Katherine A. Fallow and associates Carrie F. Apfel and Joshua N. Friedman. Founded in 1914, Jenner & Block has approximately 470 attorneys located in Chicago, Los Angeles, New York and Washington, D.C., and is known for its active pro-bono litigation practice.

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.