A Virginia regulation barring alcohol advertising in student-run publications does not violate the First Amendment rights of college newspapers, a divided panel of the U.S. Court of Appeals for the Fourth Circuit ruled on Friday.
The decision overturns a lower court's ruling that the ban on alcohol ads was an unconstitutional limitation on commercial speech. The appeals-court ruling also conflicts with a 2004 opinion by the U.S. Court of Appeals for the Third Circuit, written by then-Judge Samuel A. Alito Jr., now a justice on the U.S. Supreme Court.
In the Fourth Circuit case, Educational Media Company at Virginia Tech v. Swecker, student newspapers at the University of Virginia and Virginia Tech challenged two state rules on alcohol advertising.
Virginia's Alcoholic Beverage Control Board adopted the rules two decades ago in an effort to curb underage drinking.
One of the regulations prohibits the use of "'happy hour' or similar terms" in all print and online advertisements.
The other regulation bars college newspapers from publishing advertisements for beer, wine, and liquor "unless in reference to a dining establishment," in which case the ads may not contain references to specific brands of alcohol or to prices.
The student newspapers argued there was no evidence that eliminating such ads from college newspapers reduced student demand for alcohol. In addition, the newspapers said, the ban was ineffective because alcohol advertising was widely seen by students in other media sources. In a 2008 ruling, a federal magistrate judge agreed with the student newspapers and prohibited the board from enforcing the rules.
In Friday's ruling, however, two of the three judges on the appellate panel sided with the beverage-control board, concluding "that history, consensus, and common sense support the link between advertising bans in college newspapers and a decrease in demand for alcohol among college students."
"It is counterintuitive for alcohol vendors to spend their money on advertisements in newspapers with relatively limited circulation, directed primarily at college students, if they believed that these ads would not increase demand by college students," wrote Judge Dennis W. Shedd in the majority opinion.
The college newspapers failed to prove otherwise, Judge Shedd wrote.
In a dissent, Judge Norman K. Moon pointed out that the regulation should not even apply to the college newspapers because a majority of their readers are over the age of 21 and legally able to buy alcohol.
More importantly, Judge Moon wrote, the burden should be on the beverage-control board to prove that banning alcohol ads would have an impact on student demand for alcohol.
To support his argument, Judge Moon cited the 2004 decision by then-Judge Alito in the case Pitt News v. Pappert, which struck down a Pennsylvania law banning alcohol ads paid for "by communications media affiliated with a university, college, or other 'educational institution.'"
The link between alcohol ads in college newspapers and underage drinking "is speculative, at best," Judge Moon writes.
Effect on Editorial Decision Making
Rebecca Glenberg, legal director of the American Civil Liberties Union of Virginia, which represented the college newspapers in court, said in a news release that she was disappointed in the ruling.
"The effect of this regulation that the circuit court upheld was to substantially diminish the student newspaper's revenue, which is almost totally based on advertising," she said. "Perhaps more importantly, it interferes with the editorial decision making of students, editors, and journalists." Ms. Glenberg was quoted as saying in a news release by the Student Press Law Center.
Lawrence White, vice president and general counsel at the University of Delaware, said he was sympathetic to the need to reduce underage drinking but also concerned about the decision's impact on student news media.
"On the one hand, abusive drinking is the scourge of many campuses. ... On the other hand, college newspapers need all the revenue that they can get," he said.
Mr. White also said the regulation was "more symbolic than real" as a means to control underage drinking on campuses, where students are bombarded by alcohol ads in so many other venues. "As a college official, I wish we lived in an environment where people weren't abusing alcohol to the extent they are on many campuses," he said.
In addition to Virginia, the Fourth Circuit covers the states of Maryland, North Carolina, South Carolina, and West Virginia. The Third Circuit covers Delaware and New Jersey as well as Pennsylvania. Appeals to the U.S. Supreme Court often cite conflicting rulings among the circuits as grounds for review of a case by the high court.