Fourth Circuit says Virginia ban on college papers' alcohol advertisements unconstitutional

VIRGINIA — A federal appeals court ruled that Wednesday that Virginia’s ban on alcohol ads in student newspapers was unconstitutional, bringing an end to a lawsuit filed seven years ago.

Virginia Tech’s Collegiate Times and the University of Virginia’s Cavalier Daily argued that the ban, imposed by the state’s Alcohol and Beverage Control Commission, violated their First Amendment rights and discriminated against college media outlets.

Previous courts at the district and appellate level upheld the ban, saying that the state’s “substantial interest in combating underage and abusive drinking on college campuses” outweighed the students’ rights to publish advertisements. Wednesday’s 2-1 ruling reverses those decisions.

“Because the advertising ban is not appropriately tailored to Virginia’s stated aim, we reverse the

judgment of the district court,” the Fourth Circuit U.S. Court of Appeals wrote Wednesday.

The Virginia American Civil Liberties Union represented the students against the state Attorney General’s Office, which represented Virginia’s ABC board. The Student Press Law Center filed an amicus brief supporting the students last year.

“No decision has been made on whether to appeal,” Brian Gottstein, director of communications for the Attorney General’s Office, said in an email. “We will be reviewing those options with our client.”

Earlier judges had ruled that the government had a “substantial interest” in limiting students’ drinking habits, which allowed the regulation to pass the “Central Hudson” test. The appellate court Wednesday agreed with plaintiffs who argued that the regulation failed the test.

The 1980 U.S. Supreme Court case Central Hudson v. Public Service established four criteria for determining whether the government can ban commercial advertisements. As long as an ad is protected First Amendment speech, the government can only ban it if the ban directly advances the government’s “substantial interest.” Even then, the regulation must be tailored only to serve that interest.

The court said the regulation failed to directly advance Virginia’s substantial interest in curbing underage drinking.

Another reason it failed, the court said, was that it “prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume.”

Jon Nelson, an economics professor at Pennsylvania State University, testified that the ban probably did not reduce the audience’s demand for alcohol, and said college students are continually exposed to alcohol advertisements outside of student newspapers.

“Nobody has been arguing that it’s not a good goal to prevent underage drinking,” said Kelly Wolff, general manager of Educational Media Company, which owns The Collegiate Times. But in the end, she said, the case was decided based on a similar Third Circuit ruling in 2004, which overturned an identical ban in Pennsylvania.

“We think this is an important First Amendment issue for college newspapers in Virginia,” Wolff said.

By Samantha Sunne, SPLC staff writer. Contact Sunne by email or at (703) 807-1904 ext. 123.