Federal Judge Rules College Alcohol-Ad Ban Violates Free Speech
Tuesday, April 1, 2008; 12:47 PM
RICHMOND, Va. -- A federal judge has overturned Virginia's decades-old ban on alcohol-related advertising in college newspapers, saying that the law violates the student publications' constitutional right to free speech.
U.S. Magistrate Judge M. Hannah Lauck sided with the student newspapers at the University of Virginia and Virginia Tech, which said the restrictions on alcohol references -- including phrases such as "happy hour" -- in print and online media hampered their ability to make money because they've had to turn down potential advertisers.
The Virginia Department of Alcoholic Beverage Control's rules initially were adopted to curb underage student drinking. Lauck ruled Monday that while reducing underage drinnking and abuse of alcohol is in the government's interest, the agency's experts failed to show that the ban reduced such behavior.
ABC officials "present no information about how drinking behavior at Virginia Tech and UVA compares to behavior at campuses not subject to any advertising restriction, or subject to greater prohibition," Lauck wrote in a memorandum opinion.
Lauck also stated that such commercial speech is protected by the First Amendment because it doesn't promote anything illegal and isn't misleading. Furthermore, she noted that both sides agreed that more than half of their newspapers are read by people 21 or older.
"We are disappointed in the court's decision," said Tucker Martin, a spokesman for the attorney general's office, which argued on behalf of the ABC board. "We are reviewing the full opinion and will have no further comment at this time."
The state regulations ban ads for beer, wine and mixed drinks in student-run publications unless they're in the context of an ad for a restaurant. They also ban the phrase "happy hour" and references to specific mixed drinks.
The Virginia American Civil Liberties Union sued the ABC board in 2006 on behalf of the student publications, arguing that the restrictions didn't curb alcohol consumption and put the newspapers at a disadvantage to competitors in the Blacksburg and Charlottesville markets that weren't subject to the ban.
"When the government curbs speech, it has to show that it serves an important societal purpose," Virginia ACLU executive director Kent Willis said in a statement Tuesday. "There was simply no evidence whatsoever that limiting advertising reduced alcohol consumption by students."
In their arguments, ACLU lawyers cited a 3rd U.S. Circuit Court of Appeals ruling in 2004 that struck down a Pennsylvania law prohibiting paid alcohol ads in college publications. The court ruled in The Pitt News v. Pappert that the ban unfairly burdened student-run publications and hindered their right to free speech.
Calling that case "factually analogous" to the Virginia case, Lauck wrote that even though college students don't see liquor ads in their campus newspapers, they would see similar ads in other outlets.