In an ominous ruling for student media, a federal appeals court ruled constitutional a Pennsylvania state law prohibiting the advertising of alcoholic beverages in newspapers published for educational institutions. Pitt News v. Fisher, 215 F.3d 354 (3rd Cir. 2000).

    In 1996 the Pennsylvania legislature passed a measure known as "Act 199," which provided that no "alcoholic beverage and malt beverage advertising" would be permitted in any newspaper or similar publication produced by "any educational institution." The Pennsylvania Liquor Control Board determined in December 1997 that only liquor licensees and manufacturers could be punished under the law.

    However, in April 1999 the Pitt News, a student-run publication at the University of Pittsburgh, challenged the law in federal court. The paper suffered a loss of more than $17,000 in advertising revenue after several advertisers canceled their contracts for fear of being prosecuted under the new law. The paper contended that this loss of revenue caused the paper to cut back its size, directly violating its free press rights. The paper also asserted that the new law violated the First Amendment rights of its former advertisers.

    In July 1999 a federal district court judge dismissed the suit, ruling that the newspaper lacked standing to challenge the law. The judge reasoned that the proper party to challenge the law would be a liquor business, not the paper.

    On appeal, a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled on June 6, 2000 that the paper had standing to assert its own First Amendment claim, but lacked standing to assert the rights of its former advertisers. In Pitt News v. Fisher, the panel also unanimously refused to enjoin enforcement of the law because the paper failed to show a likelihood of success on its First Amendment claim.

    The Third Circuit first determined that the paper had standing because it "has demonstrated a personal stake in the outcome of this litigation." The court recognized that the paper’s loss of revenue was "fairly traceable" to the new law. However, the panel rejected the paper’s argument that it could assert the rights of third parties. The court noted that the Pitt News had not demonstrated that the advertisers had "any impediment to bringing their own suit." The panel also wrote that the effect on the advertisers was minimal, pointing out that they could advertise in "widely available non-student publications."

    The appeals court panel also quoted from U.S. Supreme Court decisions discussing the overbreadth doctrine, noting that "it remains relevant to distinguish between commercial and noncommercial speech" when applying the doctrine, and that "the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context." Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

    The court then proceeded to the Pitt News’s own First Amendment claim. Although recognizing a connection between the law and the paper’s loss of revenue, the panel discounted this as "nothing more than an incidental economic effect of a regulation aimed at closely regulated third parties." The Act "does not directly restrict the content" of the Pitt News, the court wrote. "It is free to seek advertising from a myriad of sources, including purveyors of alcoholic beverages, so long as those beverages are not mentioned in the advertisements."

    The panel rejected the paper’s argument that the state law amounted to an unconstitutional selective tax on its publication. Several cases have held that it is unconstitutional to selectively tax a newspaper because of its content. However, the panel distinguished the selective-tax cases on two grounds: "First, they involve taxes, not regulations on advertising. Second, they involve fees levied directly against a newspaper. No taxes or fees were levied against the newspaper in the present case," the panel concluded.

    The Pitt News’s petition for en banc review was denied Aug. 17. The paper filed a petition for certiorari to the Supreme Court on Nov. 10, 2000, which the High Court denied. Pitt News v. Fisher, 215 F.3d 354 (3rd Cir. 2000), cert. denied, 121 S. Ct. 857 (Jan. 16, 2001) (No. 00-783).