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A Pennsylvania law that bans alcohol-related advertising in college newspapers is unconstitutional, the 3rd U.S. Circuit Court of Appeals has ruled, because the state was unable to show that such a law is necessary to discourage underage or excessive drinking. Ruling in favor of the student-run newspaper at the University of Pittsburgh, the unanimous three-judge panel ruled that Act 199, passed in 1996, ran afoul of the First Amendment by prohibiting liquor license holders from advertising in student newspapers with the threat of fines and revocation of liquor licenses for violators. “Even if Pitt students do not see alcoholic beverage ads in The Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus,” U.S. Circuit Judge Samuel A. Alito Jr. wrote in The Pitt News v. Pappert. “The suggestion that the elimination of alcoholic beverage ads from The Pitt News and other publications connected with the university will slacken the demand for alcohol by Pitt students is counterintuitive and unsupported by any evidence,” Alito wrote in an opinion joined by 3rd Circuit Judge Michael Chertoff and visiting Senior U.S. District Judge Dickinson R. Debevoise of the District of New Jersey. Lawyers from the Pennsylvania Attorney General’s Office argued that the law passed constitutional muster because it does not prohibit a student paper from printing alcoholic beverage ads but simply prevents the paper from receiving payments for running such ads. But Alito flatly rejected that argument, saying, “If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment.” Alito noted that The Pitt News had failed to persuade establishments with liquor licenses to place ads that did not refer to the sale of alcoholic beverages. In 1998 alone, he noted, the newspaper lost about $17,000 in revenue. “This loss affected the length of the newspaper, as well as its ability to make capital expenditures, including payments for updating its computers and acquiring digital cameras,” Alito wrote. The decision reverses a ruling by Senior U.S. District Judge William L. Standish, who held that the ban did not infringe on the publication’s freedom of expression. Standish found that the newspaper’s challenge failed because it “proceeds on the erroneous premise that it has a constitutional right not only to speak but to speak profitably.” The law did not restrict the newspaper’s content, Standish found, because it was still free to write about alcohol-related issues and to run announcements featuring drink specials at local watering holes — so long as the establishments’ owners did not pay for the plug. Now the 3rd Circuit has ruled that the law suffers from two fatal flaws. “First, the law represents an impermissible restriction on commercial speech. Second, the law is presumptively unconstitutional because it targets a narrow segment of the media, and the commonwealth has not overcome this presumption,” Alito wrote. Pitt News business manager Bethany Litzinger, a Pitt senior, praised the court’s ruling, saying she believed the advertising ban was well intentioned, but misguided. “We did understand the concerns of the legislators. They felt the ads promoted underage drinking. But 70 percent of our readers are over 21,” Litzinger said. After Standish initially upheld the law, the newspaper had defiantly begun a feature called “Drink Specials,” in which it published beer and mixed-drink prices at local bars free of charge. The newspaper was represented at trial and on appeal by attorney Witold J. Walczak, the acting legal director of the American Civil Liberties Union of Pennsylvania. The ACLU was supported in the appeal by an amicus brief from attorney Gayle C. Sproul of Levine Sullivan Koch & Schultz in Yardley, Pa., on behalf of the Student Press Law Center, the Pennsylvania Newspaper Association and the Reports Committee for Freedom of the Press. Ironically, in the first round of the litigation, the newspaper lost its bid for a preliminary injunction and later lost its first appeal to the 3rd Circuit when a different three-judge panel predicted that the newspaper was not “likely to succeed” in its challenge. In a June 2000 decision, U.S. Circuit Judge Richard L. Nygaard wrote: “Although it is true that the enforcement of Act 199 has had the effect of driving away certain closely regulated businesses who previously advertised in The Pitt News, this does not in itself amount to a violation of The Pitt News‘ First Amendment rights.” Judge Marjorie O. Rendell and the late Judge Carol Los Mansmann joined Nygaard. But Alito found that the first panel’s decision was not binding on the new panel because it focused only on whether the newspaper had met the test for winning a preliminary injunction. “Had the [first] panel gone further and taken an unequivocal position on the merits, we would consider ourselves bound,” Alito wrote. Having concluded that the court was free to take a fresh view of the case, Alito found that Act 199, as applied to a college newspaper, violates the First Amendment. “The very purpose of [the law] is to discourage a form of speech (alcoholic beverage ads) that the commonwealth regards as harmful,” Alito wrote. “Imposing a financial burden on a speaker based on the content of the speaker’s expression is a content-based restriction of expression and must be analyzed as such.” Under U.S. Supreme Court case law, Alito said, the government’s burden to defend such a law is a heavy one because it must show that the law “directly advances” a governmental interest and “is not more extensive than is necessary to serve that interest.” Alito concluded that the government failed to meet its burden because “the commonwealth has not shown that [Act 199] combats underage or abusive drinking ‘to a material degree,’ … or that the law provides anything more than ‘ineffective or remote support for the government’s purposes.’” There was also no evidence, Alito said, “that the elimination of alcoholic beverage ads from The Pitt News will make it harder for would-be purchasers to locate places near campus where alcoholic beverages may be purchased.” Instead, Alito said, “common sense suggests that would-be drinkers will have no difficulty finding those establishments despite [Act 199], and the commonwealth has not pointed to any contrary evidence.” As a result, Alito concluded that the government was relying on “speculation” and “conjecture” when it claimed that underage and abusive drinking would diminish “if alcoholic beverage ads are eliminated from just those media affiliated with educational institutions.” The Associated Press contributed to this article.

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