Court throws out Pa. alcohol ad ban

Federal appeals court rules ban on ads in student media violates the First Amendment

PENNSYLVANIA -- In a ruling five years in the making, a federal appeals court ruled in July that a state law banning paid alcohol advertisements in student media was a violation of the First Amendment.The landmark ruling paves the way for other student media outside of Pennsylvania to fight similar laws or restrictions.

The law, known as Act 199, was enacted by the Pennsylvania legislature in 1996 and prohibited the advertisement of alcoholic beverages in any medium that is "published by, for or in behalf or any educational institution." 

Under the act, college newspapers could not run advertisements if they contained any information about alcohol.In conjunction with the American Civil Liberties Union of Pennsylvania, The Pitt News, a student newspaper at the University of Pittsburgh, filed a lawsuit against the Pennsylvania attorney general, the Pennsylvania State Police and the Pennsylvania Liquor Control Board in 1999. 

The newspaper sued after a local restaurant was fined for placing alcohol-related ads in the publication. After the fine, the newspaper said many local businesses stopped advertising, which resulted in a $17,000 decrease in newspaper's annual advertising revenue.A first-time violation of the law could have resulted in a maximum fine of $500 and a three-month prison sentence for advertisers.The unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit said that while the law intended to curb underage drinking, students still were exposed to advertisements on the radio, television and in other community nonstudent publications distributed on campus.

"The suggestion that the elimination of alcoholic beverage ads from the Pitt News and other publications connected with the University will slacken the demand for alcohol by [University of Pittsburgh] students is counterintuitive and unsupported by any evidence that the Commonwealth has called to our attention," the court said.

The court also said the law is not tailored to achieve its goal of curtailing underage or abusive drinking, noting that 67 percent of the students on campus were of legal drinking age, as were 75 percent of the total university population. The panel also found the law to be unconstitutional because it placed a financial burden on a narrow segment of the media -- college and university publications.The court's ruling overturns several previous rulings that found the law to be within the bounds of the U.S. Constitution.

The U.S. District Court for the Western District of Pennsylvania ruled in 1999 that the newspaper did not have standing to challenge the statute because the act only targeted advertisers and not the student media. The newspaper appealed the decision, however, a three-judge panel of U.S. Court of Appeals for the Third Circuit rejected the appeal in June 2000, saying the newspaper could not argue that the First Amendment rights of businesses were being violated.

Lawyers for the newspaper petitioned the U.S. Supreme Court in November 2000 to hear the case, but the high court declined and sent the case back to the federal district court in January 2001

The federal district court ruled against newspaper for the second time in February 2003, granting summary judgment to the defendants. The court said that student newspapers have a First Amendment right to determine their content, but ruled that The Pitt News did not show that the act violates these rights. The court stressed the law was directed at advertisers and that student publications were not punished for printing alcohol-related ads.The newspaper appealed that decision, and the federal appeals court heard oral arguments on the appeal in January.

Several media organizations, including the Pennsylvania Newspaper Association, the Reporters Committee for Freedom of the Press and the Student Press Law Center filed a friend-of-the-court brief in the case in support of the Pitt News.

A spokesman for the Pennsylvania attorney general's office said in a published report that the state has not decided whether to appeal the ruling.Vic Walczak, an attorney for The Pitt News, said the court's ruling is especially important to student media at the college level.

"It's not often that you lose arguments nine times and win on the 10th try," Walczak said. "The case itself is very important because it's about who decides what goes into the newspaper. Is it the government, or is it the student editors? The court [said to the government] get out and stay out of the newsroom."

Bethany Litzinger, the newspaper's business manager, said the newspaper staff is pleased with the outcome of the lawsuit. She said the staff looks forward to contacting advertisers that stopped running ads in the newspaper because of the law.

Litzinger said the students at the newspaper owe much thanks to the newspaper's advisers for keeping each generation of editors up to date on the case.

"Eight years after this law was enacted, a court has finally recognized how irrational and unconstitutional it was," said SPLC executive director Mark Goodman. "The staff of The Pitt News deserves much credit for its willingness to fight this over the course of many years.  College student newspapers around the state will be the beneficiaries of its courage."

Three other states -- New Hampshire, Utah and Virginia -- prohibit alcohol advertising in student publications at public universities, according to a 2003 study by the Georgetown University Center on Alcohol Marketing and Youth.Because the U.S. Court of Appeals for the Third Circuit only has jurisdiction over Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands, the ruling is not binding in the three states with bans on alcohol advertising in student media. 

Courts, however, often look to others in different federal circuits for guidance on cases.In a similar case, a state court rejected a claim in 1977 that a student newspaper at the University of Kentucky was bound by a state regulation that restricted the advertisement of alcoholic beverages in an educational institution's newspaper. The court ruled that the newspaper was independent of university control, and thus was not subject to the restriction.

View the court's decision in The Pitt News v. Pappert, No. 03-1725 (3rd Cir., July 29, 2004).Download Adobe Acrobat Reader to view document.Read previous coverage:

Fall 2004, Pennsylvania, Pitt News, reports, University of Pittsburgh