Collegiate Times

The American Civil Liberties Union of Virginia has petitioned the U.S. Supreme Court to review a case challenging a ban on alcohol-related advertisements in Virginia’s student publications.

In April 2010, the Fourth Circuit Court of Appeals upheld a ban from Virginia’s Alcohol Beverage Control Board prohibiting college publications from advertising beer, wine and mixed drinks, overturning a 2008 district court decision that deemed the advertising prohibition unconstitutional.

The suit was first brought by the Educational Media Company at Virginia Tech, the Collegiate Times’ parent company, and The Cavalier Daily, Inc., which owns the University of Virginia’s student newspaper, in the case Educational Media Company at Virginia Tech v. Swecker.

The Virginia ACLU’s petition, released Monday, centrally revolves around the application of what is considered the Central Hudson test, based on the 1980 Supreme Court case Central Hudson Gas & Electric v. Public Service Commission.

The Central Hudson test allows the government to restrict commercial speech if it is unlawful or misleading, and directly and materially advances a “substantial governmental interest” as long as the restrictions are not more extensive than necessary.

The Fourth Circuit Court determined there was a record supporting a link between the ban and decreasing alcohol demand among college students, noting college papers primarily target college students.

In its petition, the Virginia ACLU argued the Fourth Circuit court’s application of the Central Hudson test conflicted with decisions made in similar cases, including a 2004 case in which a ban on paid alcohol advertising in the University of Pittsburgh campus newspaper Pitt News was found to be an unconstitutional restriction of expression.

The Virginia ACLU in the memo also disputed the Fourth Circuit court’s connection between a ban on alcohol advertising and underage drinking, citing a lack of evidence.

“In the absence of evidence, it’s dangerous to go to common sense, because it can take you in a variety of directions,” said Rebecca Glenberg, Virginia ACLU’s legal director.

Kelly Wolff, general manager of EMCVT, said while reducing risky drinking behaviors among young people was a “worthy goal,” the ban didn’t advance that goal.

“It just doesn’t work in this case,” Wolff said.

She noted that while the government has the ability to limit what advertising is printed, there has to be a compelling reason.

“Not only have they not shown this, but there is no way for them to show it in this case,” Wolff said.

Glenberg said a paper’s advertising was directly connected to the freedom of the press guaranteed by the First Amendment, noting it was a part of the editorial decision process and the revenue generated from the advertising allowed the paper to continue working.

In court filings, the two papers argued each lost approximately $30,000 a year in advertising revenues as a result of the ban.

“By depriving the papers of an important type of revenue allowed to other newspapers, the state is infringing on college newspapers’ First Amendment rights in a discriminatory fashion,” Glenberg said.

Kathleen Shaw, a spokeswoman for Virginia Alcoholic Beverage Control, said an “appropriate response” would be from Virginia’s Office of the Attorney General, but did not give a timeline for when the response would be released.

Glenberg said if the case were to be accepted, arguments in the Supreme Court would likely begin in the spring  2011.

A version of this article appeared in the Aug 27 issue of the Collegiate Times.