Virginia’s alcohol control board (the “Board”) bans college newspapers from running alcohol related advertisements. Two newspapers, claiming a loss of $30,000 in annual advertising sales, sued in federal court for violations of their First Amendment rights. The district court declared the Board’s ban an unconstitutional restriction on freedom of the press.
The appeals court for the Fourth circuit, however, overturned the decision in April of this year, agreeing with the Board that the ban was necessary to prevent illegal underaged drinking. The Court stated that there was a “common sense” link between banning the alcohol advertisements in college papers and a decrease in demand for alcohol by college students.
Recall that commercial speech (which is neither misleading, nor related to illegal activities) cannot be banned or restricted unless the Supreme Court’s three part test is satisfied (from the 1980 Central Hudson case).
1) the state must have a “substantial” interest;
2) the restriction must be directly related to the state’s interest - it cannot be speculative, or theoretically related; and
3) the restriction cannot be excessive - or, if there is a more limited way to meet the state’s interest, excessive restrictions on speech are unconstitutional.
In this case, the Virginia Board did not provide any evidence to support even an assumption that banning alcohol related ads in the college newspapers would reduce underaged drinking (much less that it has reduced it). The ban is not only speculatively related to the Board’s objectives, it is also excessively restrictive. Over half of the papers' readers were over the drinking age. A "common sense" link is not enough to meet the Supreme Court’s standards for restricting First Amendment Rights.
The papers along with the Virginia chapter of the American Civil Liberties Union are seeking Supreme Court review of the Fourth Circuit’s decision, claiming that the appellate court misapplied the Supreme Court’s standards in First Amendment advertising cases. A similar ban was thrown out by the Third Circuit in 2004, noting that the burden placed on college media was overly restrictive since college students would still be exposed to large amounts of alcohol advertising even if ads were banned in college newspapers. The restriction on freedom of the press for the college papers was not justified.
We hope the Supreme Court hears this case and overturns the Fourth Circuit’s decision. Universities are meant to train the future leaders of this country, and instead courts sanction treating students like small children. As the Third Circuit pointed out, the college students are already exposed to alcohol ads everyday. Where there is no similar burden placed on other media, there is no evidence that the small fraction of ads appearing in college newspapers has any impact whatsoever on students' behavior. A “common sense” link is simply not enough to justify violations of the First Amendment rights of college newspapers.