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.
Advertisers' Intentions
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.
Comments
1. mbelvadi - April 12, 2010 at 07:16 am
The editors may have lost, but I wonder, with the new SCOTUS view of for-profit 1st amendment rights, if the alcohol selling companies themselves can overturn the law as a violation of THEIR freedom of expression rights, given that both sides agreed that the majority of readers were legal customers of theirs.
That said, there's something seriously wrong with the business model of college newspapers (or with college students themselves) if they can't make ends meet without advertising this one particular industry. Is that really the only industry that has something to sell that college students want to buy?
2. 22228715 - April 12, 2010 at 07:58 am
Good question, mbelvadi. I would wonder a bit further... what is the readership of college newspapers today? Since most papers are free, there are no subscription data to measure more or fewer readers over time. But we know that general newspaper readership is way down, and those non-readers are people who were just in college. At my campus, no one would dare limit advertising of a program or service to the student newspaper, because the students tell us that the only people who read the student newspaper are administrators and student leaders (all looking for their own names.) If a pitcher night ad falls in the woods and there's no one there to hear it... ?
3. robbie1 - April 12, 2010 at 10:09 am
Annual surveys of college newspaper readership offer actual statisics and reader response to content, contradicting the prejudicial comments of 22228715 above.
The Alloy marketing group does annual national surveys of students who read their campus papers. Other organizations have surveyed college newspaper readership, as well.
College student newspapers are niche publications which enjoy good readership within their target audiences, and they are valued by many because they are often the only unpressured and/or uncensored source of news or forum for student opinions and commentary on their respective campuses. They provide broad opportunities to students to practice and develop good communication skills--something valued and sought by employers IN ANY FIELD.
MOST college students DO NOT drink excessively (there are surveys which show this, too, if you decide to research the issue.) Excessive alcohol consumption is a problem with some college students, but content of advertising does not cause the behavior. IF it did, wouldn't most college students drink excessively?
Excessive drinking is the result of irresponsible individual decisions.
College Greek organizations have for years tried to surpress excessive drinking of some of their members...yet they still have incidents with members who are irresponsible.
Seems clear that the Greek groups' explicit policies and direct messages about controlling drinking are not able to prevent incidents of excess.
Check with your local newspaper, which is likely the only source of information on the many adults who are arrested each week by your area police authority for drunk/drugged driving. It's fair to say most of those arrested are NOT college students. These often chronic offenders are allowed to get by with very lenient punishments, maybe lose their licenses, yet continue to drive drunk over and over and over ... and some eventually kill people.
It is a human problem, one of irresponsible individual decisions, that society at large cannot seem to solve.
I would urge a rational approach to consideration of the causes of excessive drinking in college students or any others.
It is mistaken to blame and censor college newspapers because there are some individuals on their campuses who choose to behave irresponsibly.
4. asymptotic - April 12, 2010 at 12:31 pm
So corporations have first amendment protected free speech when it comes to campaign contributions, but not when it comes to advertising alcohol in a campus newspaper? Really?
Preventing these ads would have a significant impact on excessive drinking? Really?
I think the prerequisite to either entering politics or to acquire politically connected positions is to vow to remove any semblance of common sense from your decision making and to swear an oath to disregard our freedoms whenever politically valuable. At least in many cases.