PRESS RELEASE: Appeals Court Urged to Uphold Ban on Discriminatory Alcohol Advertising Regulations

College student newspapers seek end to Virginia's antiquated ad rules

Contact: Frank D. LoMonte, or 703.807.1904

The Student Press Law Center ("SPLC"), a national non-profit advocacy group devoted to defending student journalists' First Amendment rights, is urging a federal appeals court to uphold a lower court's decision striking down selective Virginia regulations that restrict the words college student newspapers can use in advertisements for alcohol and bars.

The SPLC filed a friend-of-the-court ("amicus") brief on Tuesday, May 19, with the Fourth U.S. Circuit Court of Appeal in Richmond, Virginia, in the case of Educational Media Company at Virginia Tech, Inc. v. Swecker. The SPLC's brief supports a case initially brought by the American Civil Liberties Union of Virginia on behalf of the University of Virginia's The Cavalier Daily and Virginia Tech's Collegiate Times.

In the brief, SPLC attorneys argue that Virginia's alcoholic beverage regulations place an unfair financial burden on the student media, because they prohibit college student publications from accepting paid advertising for alcoholic beverages or bars, and allow only very limited references to alcohol (approved words such as "beer," "wine," and "cocktails") in advertisements for restaurants.

In a March 31, 2008, order, U.S. Magistrate Judge M. Hannah Lauck found that the First Amendment prohibited enforcing the college media regulation, as well as a broader Virginia regulation -- applicable to all media -- that outlaws ads describing liquor drinks, except for eight pre-approved terms, including "Exotic Drinks" and "Polynesian Drinks."

Judge Lauck ruled that the regulations were not sufficiently tailored to promote a reduction in underage drinking -- the State's justification for the regulations -- and trampled on too much First Amendment speech. The State of Virginia then appealed to the Fourth Circuit.

In its legal brief to the Fourth Circuit, the SPLC points out: "There is no evidence that restricting some (but not all) alcohol advertisements in college student publications while permitting all other forms of media reaching this same audience to publish these promotions has any impact on underage or abusive drinking by college students."

The SPLC's brief was joined by College Newspaper Business and Advertising Managers ("CNBAM"), a national organization of college newspaper business staffs that represents more than 150 student newspapers with a circulation of over 1.4 million and more than $50 million in annual ad sales. The brief was prepared and filed by volunteer legal counsel from the Washington, D.C., office of Jenner & Block LLP. The legal team included partner Katherine A. Fallow and associates Carrie F. Apfel and Garrett A. Levin. Founded in 1914, Jenner & Block has approximately 470 attorneys located in Chicago, Los Angeles, New York and Washington, D.C., and is known for its active pro-bono litigation practice.

"Especially in the current economy, it is absolutely essential that student publications be able to generate ad revenue from any legal source," said Frank D. LoMonte, an attorney and Executive Director of the Student Press Law Center. "The ability to build a diverse base of advertising revenue is critical to student journalists' ability to establish financial independence from their schools, and student journalism works best when the journalists have the insulation of financial autonomy."

"It is hardly a secret to college students that alcoholic beverages exist," LoMonte said. "The state itself admits that unsafe drinking has done nothing but escalate while these ad regulations have been in place. The regulations have no effect at all, except for their negative effect on student journalism."

LoMonte said the SPLC and CNBAM felt it was important to intercede in support of the Cavalier Daily and Collegiate Times, because in its appeal, the State of Virginia tries a "divide and conquer" tactic by urging the Fourth Circuit to limit its ruling to only those two newspapers, leaving the estimated 35 other college student newspapers in the state each to bring their own lawsuits. "We want the Court of Appeals to understand, as Judge Lauck understood, that you cannot put the burden on small, poorly funded publications to sue the State of Virginia over and over to establish the same legal point. The trial court correctly found that the regulations are unconstitutional, period, and the Fourth Circuit should leave Judge Lauck's thorough and careful opinion undisturbed," LoMonte said.

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.

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