US: Limits to First Amendment guarantees

The US judiciary has reversed a trend by upholding a ban on alcohol advertisements in media associated with post-secondary educational institutions.

The battle was pitted between the Virginia Alcoholic Beverage Control Board and two campus newspapers, Virginia Polytechnic Institute and State University's The Collegiate Times and Virginia University's Cavalier Daily, and considered a cornerstone of the American Constitution: the First Amendment right to freedom of commercial speech.

Coming as an unexpected victory for the board, the US Court of Appeals for the Fourth Circuit's majority opinion overturned a lower court injunction from 2008 that deemed the regulation infringed on the media's constitutional guarantees. At that time, the board was restricted in the enforcement of its alcohol advertisement ban, which had been legislated in 1985.

Precedents upholding the freedom of commercial speech in similar cases have been common in recent years. In 2004, the Third Circuit Appeal Board overturned a similar ban at Pennsylvania colleges and universities.

In that case, the judges unanimously ruled that the First Amendment rights of The Pitt News (of the University of Pittsburgh) had been violated by a ban on alcohol advertisements because the government could not prove that they had a significant impact on antisocial behaviour.

The Collegiate Times and the Cavalier Daily, with support from the American Civil Liberties Union, or ACLU, of Virginia, adopted a similar strategy. But, focusing on the 2008 ruling, they claimed that press censorship limited their ability to compete for advertising and thus compromised their marketability.

Such a ban would cost approximately $30,000 in lost revenues per year, said the newspapers. It also challenged their professional integrity.

In this regard, ACLU legal director Rebecca Glenberg asserted in a press release the ruling would have long-standing consequences by "interfer[ing] with the editorial decision-making of students, editors and journalists".

Defending its position, the alcohol board responded by drawing attention to the deleterious effects associated with underage drinking. It focused on the targeting by alcohol advertisers of college students who are generally under the legal drinking age of 21.

It also argued that the regulation was a necessary cost-effective preventative mechanism in the context of increasingly limited financial resources for both the institutions themselves and government.

The board's regulation limits alcohol advertising in print and electronic media that is directed specifically to underage audiences. For instance, it prohibits the use of terms such as 'happy hour' but permits the publication of advertisements for alcohol in the context of a dining establishment.

In response, the three-judge appellate panel considered whether the newspapers' commercial speech was lawful and not misleading.

Judges Dennis W Shedd and Clyde H Hamilton supported the board's claims, citing that while a "correlation between advertising and demand alone is insufficient to justify advertising bans in every situation ... 'college student publications' primarily target college students and play an inimitable role on campus".

With reference to the restriction on commercial speech, they did note that alcohol advertising was not banned from all college media, but rather that the regulation addressed the problem of underage and dangerous drinking as linked to appropriate government needs. As such, the appeals court supported the use of other preventative mechanisms.

District Judge Norman K Moon, however, dissented. He claimed the ban was not constitutional, explaining that "it is dangerous and unwise to sustain broad regulations for narrow reasons".

And, in the context of current financial and social challenges, time will only tell whether a ruling like this will have long-term consequences on freedom of speech issues at other campuses in the US.