An interesting commercial speech case was published today. The Pitt News had challenged the constitutionality of a Pennsylvania law that prohibited advertisements for alcoholic beverages in media affilitated with a university, college or "educational institution." The newspaper is an independent student organization, but is affiliated with the Univ. of Pittsburgh. The Third Circuit overturned the statute on First Amendment grounds, after an earlier appellate ruling had denied a preliminary injunction because the paper was unlikely to prevail on the merits. Read the 17-page decision: The Pitt News v. Pappert [PDF].

After determining that free speech was implicated (the earlier appellate decision didn't think denying revenue to newspapers from certain advertisers implicated free speech), the decision to overturn the law was based on two arguments. First, the law violated commercial speech doctrine and, second, it placed too great a financial burden on too small a group of speakers. Under commercial speech doctrine, "the government must demonstrate that the challenged law 'alleviate[s]' the cited harms 'to a material degree.'" The problem with the law, according to the court, is that it only affects a very small number of alcohol advertisements:

Section 4-498 applies only to advertising in a very narrow sector of the media (i.e., media associated with educational institutions), and the Commonwealth has not pointed to any evidence that eliminating ads in this narrow sector will do any good. 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 together with The Pitt News. 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 that the Commonwealth has called to our attention.

As noted, more than 67% of Pitt students and more than 75% of the total University population is over the legal drinking age, and, in Lorillard, the Supreme Court held that a restriction on tobacco advertising was not narrowly tailored in part because it prevented the communication to adults of truthful information about products that adults could lawfully purchase and use. Not only does Section 4-498 suffer from this same defect, but the Commonwealth can seek to combat underage and abusive drinking by other means that are far more direct and that do not affect the First Amendment. The most direct way to combat underage and abusive drinking by college students is the enforcement of the alcoholic beverage control laws on college campuses.

The second and independent reason for the law's unconstitutionality is that it was too narrow. Normally, general burdens on speakers are perfectly acceptable. Newspapers have to pay for a business license, just like any other business. However, when media is singled-out for special financial burdens (such as denying them the ability to obtain alcohol advertising revenue), the law may be unconstitutional. The court decided that, because the law basically only applied to university affiliated media, it was too narrow.

via How Appealing