Va. alcohol advertising challenge keeps chugging along



A legal challenge to Virginia's ban on advertisements for alcoholic beverages in college publications is headed back to federal court for another round.

In a Nov. 4 ruling, the Virginia Supreme Court decided that a state regulation on alcohol ads in "college student publications" can apply to the student newspapers at Virginia Tech and the University of Virginia. There was some uncertainty whether UVA's Cavalier Daily and Virginia Tech's Collegiate Times were the type of "college student publications" targeted by the rule, since more than half of their readers are over the legal drinking age.

The Court decided that what matters is not who is actually reading the paper, but whether the paper is "intended to be distributed primarily" to those under 21. If so, then the paper is prohibited from accepting ads for the sale of alcohol, under a novel Virginia Alcoholic Beverage Commission regulation. (A previous version of the rule, since repealed, added the quirky feature of a laundry list of approved and disapproved terms -- "beer" okay, "highball" no way -- for restaurant ads that mentioned alcoholic drinks.)

The case wound up in front of the state's high court because a U.S. District Court in Richmond -- where the case originated -- decided to seek the state court's expert opinion as to the meaning of the ambiguous state regulation.

Had the Virginia Supreme Court ruled the other way, then the challenge would have effectively ended, with the Cavalier Daily and Collegiate Times exempted from the regulation's reach.

The case began as an industrywide First Amendment challenge on behalf of all Virginia college media. In 2010 a federal appeals court ruled the regulation is constitutional on its face, but left open the possibility that enforcing it against the Cavalier Daily and the Collegiate Times violates the First Amendment. If other Virginia college publications believe they are adversely affected by the advertising ban, they will have to bring their own challenges.

Based on the Virginia court's response, the case remains alive and back in the U.S. District Court, which will have to determine, first, whether the newspapers are "intended to be distributed primarily" to those under the drinking age and, if so, whether the advertising ban violates the student editors' First Amendment right to accept the ads of their choosing.

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