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3rd Circuit: State can't bar alcohol ads from college newspapers

By The Associated Press
07.30.04

PHILADELPHIA — A Pennsylvania law banning paid advertisements for alcohol in college newspapers is unconstitutional, a federal appeals court ruled yesterday.

A unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals said the 1996 law, which was intended to combat underage drinking, placed an unfair financial burden on student-run publications and hindered their right to free speech while doing little to achieve its goal.

The law was challenged by The Pitt News, a student-run paper at the University of Pittsburgh.

In the 17-page opinion in The Pitt News v. Pappert, Judge Samuel Alito said the state faces a heavy burden anytime it tries to restrict speech, but had offered only "speculation" and "conjecture" to support its contention that the ad ban would slacken the demand for alcohol by underage Pitt students.

"Even if Pitt students do not see alcoholic beverage ads in The Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus together with The Pitt News," he wrote.

The law's crafters had tried to avoid a free-speech challenge through a technicality: Instead of barring student publications from promoting alcohol, the state made it illegal for them to be paid for doing so.

Alito rejected that strategy.

"If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment," he wrote.

The ruling could be a financial boon for other college newspapers, many of which eschew school funding so that they may retain their editorial independence, and are reliant on advertising revenue to survive.

In its suit, The Pitt News said it lost $17,000 in ad sales after the state stepped up enforcement of the ban in 1999. Some bars and restaurants near the campus stopped advertising entirely, rather than alter their ads to remove any reference to alcohol.

The paper's lawsuit was supported by the Pittsburgh chapter of the American Civil Liberties Union, the Student Press Law Center, the Pennsylvania Newspaper Association and the Reports Committee for Freedom of the Press.

Pennsylvania ACLU Litigation Director Witold Walczak called the court's decision "gratifying" yesterday because of his group's previously unsuccessful challenges to the law.

"This is the tenth time we've asked a court to rule on this issue and this is the first time they've agreed," he said.

Pitt News business manager, Pitt senior Bethany Litzinger, praised the court's ruling and said the advertising ban was well-intentioned, but misguided.

"We did understand the concerns of the legislators. They felt the ads promoted underage drinking. But 70 percent of our readers are over 21," Litzinger said.

After a federal judge initially upheld the law, the newspaper had defiantly begun a feature called "Drink Specials," in which it published beer and mixed-drink prices at local bars free of charge.

A spokesman for the Pennsylvania attorney general's office declined to comment on the opinion, and said the state had not yet decided whether to appeal.


Previous
College paper skirts alcohol-ad ban by reporting drink specials
Decision by The Pitt News to run list comes in wake of federal judge's ruling that state law doesn't infringe on freedom of expression. 02.21.03

Related

Federal appeals panel rejects college newspaper's challenge of ad rules

Court finds economic effect of Pennsylvania alcohol ad ban doesn't violate Pitt News' constitutional rights. 06.08.00

Alito endorses free speech in public square
Nominee also discusses differences between commercial, political speech. 01.12.06

College newspapers challenge ban on booze ads
Federal lawsuit by two Virginia campus papers pits freedom of press, commercial speech against efforts to stem underage drinking. 06.11.06

Va. can’t bar alcohol ads in college newspapers
Federal magistrate says such commercial speech is protected by the First Amendment because it doesn't promote anything illegal and isn't misleading. 04.02.08

Judge Alito fairly strong on free expression
By Ron Collins, David Hudson Nominee's opinions show receptivity to First Amendment concerns. 10.31.05

Banning liquor ads in college newspapers doesn’t work
By Gene Policinski Virginia judge's ruling notes prohibition restricted campus press freedom, put student publications at competitive disadvantage. 04.06.08

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