The Fourth Circuit Court has upheld The Cavalier Daily’s right to publish advertising for alcohol, the Associated Press reports. An Alcoholic Beverage Commission regulation (§ 3VAC5-20-40 (A)(2)) prohibits licensees from advertising in student newspapers:
Advertisements of alcoholic beverages are not allowed in college student publications unless in reference to a dining establishment, except as provided below. A “college student publication” is defined as any college or university publication that is prepared, edited or published primarily by students at such institution, is sanctioned as a curricular or extra-curricular activity by such institution and which is distributed or intended to be distributed primarily to persons under 21 years of age.
Both the Cav Daily and Virginia Tech’s Collegiate Times sued, represented by the ACLU of Virginia, arguing that this served as an unconstitutional prohibition on free expression, and that it deprived them of much-needed revenue. (Both publications are independent, student-run publications, not funded by their respective universities.) It took years for the case to work its way through the court system, with a federal judge siding with the papers and the Supreme Court declining he case, but the 2–1 ruling by the Fourth Circuit may well be the end of things. The Office of the Attorney General says that they haven’t decided if they want to appeal the case back up to the Supreme Court.
In the court’s published opinion—which summarizes the very persuasive arguments in favor of the Cav Daily’s position, and the lousy arguments raised by the Virginia Attorney General’s office—Judge Stephanie Thacker finds that the prohibition does present an unconstitutional First Amendment restraint, and that it “prohibits large numbers
of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume.”
In no small part because of a lack of advertising income, the Cav Daily is a substantially smaller newspaper than when this case first started, and comes out less frequently. They’ve moved their operations online substantially, in order to deal with this. The revenue from alcohol advertising could have served them well, and surely would have left them in better financial shape today. For all of the attorney general’s talk about eliminating burdensome regulations that make it tough to run a small business, he sure has fought hard in favor of keeping this regulation, and it’s been awfully tough on these two small businesses.
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