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Alito as judge: Paid speech is also free speech

By Bruce E.H. Johnson
Special to the First Amendment Center Online

Bruce Johnson

This article is part of an online symposium on the First Amendment Center Online concerning Judge Samuel Alito’s First Amendment jurisprudence.

The American news media, by and large, are commercial entities. They depend on advertising, in whole or in part, to provide financial support for the newspapers, magazines, broadcasts, telecasts, Web sites and similar information products that they distribute to the public.

This is the dirty little secret of commercial speech. In some ways, commercial speech is essential to the vitality of the news media. Thus, regulations seemingly aimed at commercial speech may hit a different target — the traditional media.

Commercial speech & the news media
In that regard, so-called “commercial speech” — as Judge Alex Kozinski and Professor Stuart Banner warned in their seminal 1990 article “Who’s Afraid of Commercial Speech?” — should not be treated as a second-class category of speech, a mere “stepchild” of First Amendment jurisprudence. Although many courts and commentators have suggested that commercial speech should be entitled to less protection than news articles and other “core” First Amendment expression, the fact is that advertising and commercial speech are the lifeblood for the traditional news media. If government can eliminate that lifeblood, it can destroy the media.

The inherent symbiosis between commercial speakers and the rights of the news media has received little or no attention in the courts. For example, over the past three decades, most commercial-speech cases have focused on regulations seemingly aimed at the advertisers, not the media, and were thus resolved under standard commercial-speech analysis, with little attention paid to the crucial role of advertising in supporting the American news media. Indeed, only a few old cases, ranging from New York Times Co. v. Sullivan (1964) to Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973), and Bigelow v. Virginia (1974), had considered the constitutionality of government regulations seemingly aimed at advertising but having an obvious adverse impact on the news media.

As those divergent decisions suggest, the awkward contrast between the broad constitutional protections provided for the news media and lower First Amendment standards for regulating their finances (i.e., their advertising) may have led to the classic Holmesian “hard cases.” They did so by making bad law or, as Sullivan and Bigelow showed, by leading to new law, which in turn forced the recognition of the apparent exemptions from the respective libel and commercial-speech exceptions to the First Amendment that had been recognized by the courts since 1942.

Pathbreaking recognition
Given the commercial reality of the news media, Judge Samuel Alito’s opinion for a three-judge panel of the 3rd U.S. Circuit Court of Appeals in The Pitt News v. Pappert (2004), is a pathbreaking recognition of the significant First Amendment interests at stake when government authorities attempt to make a broad category of advertising illegal to a “discrete and insular” category of publications, thus depriving the news media of a needed revenue base. In that case, Judge Alito was confronted with an unusual Pennsylvania criminal law — enacted in 1996, and known locally as “Act 199” — which allowed newspapers affiliated with colleges, universities, and any “educational institution” to accept free alcohol advertising but criminalized any paid advertising relating to “alcoholic beverages.”

According to a representative of the Pennsylvania Liquor Control Board, the law was enforceable only against the advertiser and not the publications and applied “only when the media receives some form of payment for an advertisement.” But The Pitt News, a newspaper for University of Pittsburgh students (“at least two-thirds of whom were old enough to drink under Pennsylvania law”) felt its immediate effects in 1997, as one advertiser was forced to cancel its existing advertising contract based on threats from the Pennsylvania State Police. Moreover, “the paper, in order to protect its advertisers, felt compelled to stop accepting alcoholic beverage advertisements.” The newspaper also sought, to no surprise unsuccessfully, to persuade liquor dealers “to place ads that did not refer to the sale of alcoholic beverages.”

The newspaper challenged Act 199 in federal court. The district court, however, upheld the statute’s constitutionality, holding that the law “has no effect on The Pitt News’ freedom of expression” because the newspaper remained “free to say whatever it likes about alcoholic beverages so long as it is not paid for engaging in the expression.”

Judge Alito, writing for the 3rd Circuit, reversed. The first issue was whether the newspaper’s rights had been abridged by this regulatory scheme which pretended to regulate only its advertisers. His conclusion was succinct. In 1998, The Pitt News lost $17,000 in revenue, which “affected the length of the newspaper as well as its ability to make capital expenditures,” which, in turn, harmed its “ability to compete with other newspapers” (presumably, publications not connected to the university) and might have forced The Pitt News to charge its subscribers, which “would result in a further decrease in readership.”

Interestingly, Judge Alito’s decision was written against the backdrop of a prior Pitt News appeal to the 3rd Circuit in the same case, involving the enforcement of Act 199, in which another panel of the court ruled that the newspaper was not entitled to a preliminary injunction because “driving away” a newspaper’s advertisers “does not in itself amount to a violation of The Pitt News’ First Amendment rights.” Alito concluded that, since the prior panel had simply analyzed only the likelihood of success on the merits, and not the merits, he was free to consider the rationale “not binding on the later panel.”

‘Impermissible restriction on commercial speech’
In reaching the merits, Alito determined that Act 199 was both “an impermissible restriction on commercial speech” and “presumptively unconstitutional because it targets a narrow segment of the media.” He stated: “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. Imposing a financial burden on a speaker based on the content of the speaker’s expression is a content-based restriction of expression and must be analyzed as such.”

Citing the 1991 “Son of Sam” case (Simon & Schuster v. New York Crime Victims Board), as an illustration of this fundamental rule — which is rarely applied in commercial-speech cases — Alito next moved into a standard commercial-speech analysis. Drawing on the test developed by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Comm. (1980), Alito concluded that Act 199 failed the third and fourth prongs of the test because eliminating beer advertisements in The Pitt News would do nothing to advance the asserted government interests so long as Pitt students were “exposed to a torrent of beer ads on television and the radio.” To the same effect, students were also exposed to ads in other newspapers distributed on campus. Hence, “aggressive” enforcement of the state’s liquor laws against underage drinkers, rather than Act 199’s paternalistic proscriptions, was the appropriate means to the desired ends.

Finally, Alito’s opinion departed from traditional commercial-speech analysis and focused instead on the selectivity of Act 199, which imposed a financial burden on a “particular segment” — in this case, the student media. Government can “seek to control, weaken, or destroy a disfavored segment of the media by targeting that segment.” Citing Grosjean v. American Press Co. (1936), and its progeny, he noted that laws targeted at particular media require special justification. He also rejected as “insignificant” the distinction offered by the Commonwealth’s lawyer — that the Grosjean line of cases concerned increased expenses imposed on the disfavored medium through increased taxes, and Act 199, by contrast, simply deprived the newspaper of revenues.

Complex interplay
By addressing the commercial-speech concerns apparently at the heart of The Pitt News case and then moving beyond the Central Hudson test to expose the broader risks posed by state laws that are both content-based and targeted at particular members of the media, Judge Alito drafts an opinion that, from a First Amendment standpoint, is rich and magisterial. Furthermore, the opinion clearly embraces the complex, but little understood, interplay between defending commercial-speech rights and protecting core freedoms of the press. Finally, Judge Alito recognizes that the economic realities of a free press often dictate that it must be a paid press, and that acknowledging these realities may indeed be fundamental in the protection of First Amendment values.

Bruce E.H. Johnson is a partner in the Seattle office of Davis Wright Tremaine LLP. He is the co-author of Advertising and Commercial Speech: A First Amendment Guide (PLI Press, 2d ed. 2005).


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

Online symposium: Samuel Alito & the First Amendment

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