Modern day Prohibition
PENNSYLVANIA — An editor sends a reporter to find the newspaper adviser. One of the computers has broken down again and the adviser may be able to fix it.
Joe Lawley quickly arrives and begins tinkering with the keyboard. To the staff of the Penn newspaper, the clock seems to be ticking faster and faster as the deadline for tomorrow’s paper approaches.
“We could buy more equipment, or at least better equipment, if we had the extra $15,000,” Lawley said, referring to the revenue once generated by advertisements for bars and clubs that sell alcohol — before the ban.
After a few tense minutes, the third-year adviser at Indiana University of Pennsylvania gets the computer working. For the third time that week, he finds himself explaining to the students the reasons why money has been so tight lately.
“It makes it hard to do business when a chunk of our budget is gone,” Lawley said.
In late 1996, the Pennsylvania legislature enacted Act 199, a state law banning alcohol advertisements from campus publications.
Donna Pinkham, press secretary for the Pennsylvania Liquor Control Board (PLCB), said the law is part of a state-wide campaign to combat alcohol abuse.
“College campuses are environments where alcohol is frequently abused,” she said. “Recently, there have been more and more events demonstrating that.”
Instead of targeting college newspapers directly, Pinkham said the law limits holders of liquor licenses who purchase the ads, such as bar and restaurant owners. They face being cited by the Pennsylvania State Police if they violate the law.
A first-time violation can result in a maximum fine of $500 and a three-month prison sentence, said Jack Lewis, press secretary for the State Police Bureau of Liquor Control Enforcement.
“So far, no one has been cited for advertising alcohol in campus papers,” he said. “We have issued a few warning letters to licensees, but the law has not yet been tested in court.”
Plain and simple, Lawley said he opposes Act 199 because it violates the First Amendment.
“They have prohibited a free exchange of ideas,” he said. “To say it’s not allowed because this is a college paper is silly to me.”
The idea of taking this “First Amendment infringement” to court has never been ruled out, said Gerry Hamilton, general manager for Penn State University’s newspaper, The Daily Collegian.
“We have been considering legal action all along,” he said, “but it is not our first choice.”
Hamilton said his next step is to directly approach the lawmakers in an attempt to alter this “misguided” law.
“We originally sent a letter to the PLCB asking to meet about changing their interpretation of the law,” he explained. “They responded with a no.”
But officials at both the state police and the liquor control board said they did not recall receiving a letter from the Daily Collegian.
Attorneys at the Pennsylvania Newspaper Publishers Association (PNPA) did not write a letter, but have drafted legislation to make the law more clear, said Jon Feichtel of the PNPA.
Though it is well intended, he said the current law is violating the First Amendment rights of newspapers and their advertisers.
“Act 199 is a misguided attempt to solve the underage consumption problem on college campuses,” PNPA attorneys said in a written statement. “The PNPA and others who champion free speech believe this law an unconstitutional restraint of free speech and urge its repeal.”
The PNPA1s modified legislation is almost identical to Act 199, with just a few words changed.
Instead of banning alcohol ads at “any educational institution,” the changes would require the ban only at “primary or secondary” schools.
But because of recent reports of alcohol-related deaths and campus violence from around the country, Pinkham said she is skeptical that an amendment to the law will receive much support.
“At this point, it would probably be very unpopular to challenge a law trying to reduce alcohol consumption,” she said.
Feichtel admitted that the PNPA members are having a hard time gaining legislative support.
“We are trying to find a sponsor but so far have been unsuccessful,” he said.
Cristopher Hoel, a Pittsburgh attorney focusing on legal matters involving alcohol, said the current form of Act 199 was closer to a fourth grader’s essay than an effective public policy.
“Unless or until Act 199 is repealed, or invalidated in court, there may be a silver lining,” he said. “Parts of it are so ridiculous or unintelligible that police officers and prosecutors may be disinclined to enforce it.”
Act 199 v. the “Central Hudson Test”
The U.S. Department of Education reported that 60 percent of college students were of legal drinking age in 1995.
Many campus newspaper advisers, such as Lawley, said the readers of campus publications should be allowed to form their own opinions about alcohol.
“Not only do students read the paper, but so do staff members, faculty and community members,” he said. “On a campus where the majority of students are over 21, saying that people aren’t old enough to drink is almost like legislating morality.”
The age of the readers may have more legal importance than most people realize, said Richard Kaplar, vice president of the Media Institute in Washington, D.C.
Kaplar, an attorney specializing in commercial speech, put Act 199 up to the “Central Hudson Test.”
Named after a U.S. Supreme Court decision, Central Hudson is a test used to determine whether the government can constitutionally regulate commercial speech.
“[Part of the test] asks if the regulation directly advances the interest of the government,” Kaplar said. “There is some doubt here because the courts are not just looking for the common sense argument about, in this case, that alcohol consumption can be lowered by blocking ads. They want hard evidence.”
Kaplar also said that Act 199 may not stand against another aspect of the test, which asks if the law is narrowly drawn.
“If they want to cut down or crack down on sales of alcohol to minors, they can close the bars rather than censor speech on the subject,” he said. “The only way it wouldn’t get to the Central Hudson Test would be if the state could assert that the paper was targeting underage users.”
The ban continues Harry Kloman has some things in common with his counterpart at the Penn.
But instead of constantly fixing the computers, Kloman, the adviser for the Pitt News at the University of Pittsburgh, said he finds himself having to explain to student editors why they will not be receiving raises this year.
“We are losing revenue because of this law,” he said. “We really have to crack down on our budget. We don’t like the law and want it to go away.”
Kloman said the Pitt News staff is not accepting alcohol ads and that most advertisers have stopped offering.
Lawley suggested that little tricks could work to get around the law.
“We’ve run stories about what’s going on in the bars,” he said. “Also, one place in particular put in their ad, ‘$3 pitchers of Pepsi,’ then underneath, it said, ‘come on, you know we can’t say the B word.’ They don1t like to do this because the PLCB has put the fear of God into them.”
Ron Levick, the owner of one Pittsburgh area bar, The Attic, said he stopped advertising in newspapers like the Pitt News because of the fear of being fined.
“There has always been so much confusion on what we could and could not do with advertising,” he said. “It would help business for everybody if we could advertise.”
For now, however, Lawley will keep a closer eye on the newspaper’s budget, and the Penn staff will rotate their attention from writing stories, to the computer, to finally, the clock.
alcohol advertisements, Fall 1998, reports