Supreme Court Nominee Ruled in Favor of Alcohol Ads

By: E&P Staff Early press reports on President Bush's new nominee to the U.S. Supreme Court, Judge Samuel Alito, have highlighted some of his conservative leanings, especially a 1991 vote involving abortion. But Alito, who serves on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, a court with a reputation for being among the nation's most liberal, has at least one interesting newspaper-related decision in his past, as well.

Among his noteworthy opinions was his lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

But in a far more recent case, in July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional, The Associated Press pointed out Monday.

At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages.

Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh.

"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 wrote, according to AP.

In a May 2005 profile in the Newark Star-Ledger, Alito said, "Most of the labels people use to talk about judges, and the way judges decide [cases] aren't too descriptive. ... Judges should be judges. They shouldn't be legislators, they shouldn't be administrators."

Here is how The AP covered the Pitt/alcohol decision at the time (July 30, 2004):

PHILADELPHIA -- A Pennsylvania law banning paid advertisements for alcohol in college newspapers is unconstitutional, a federal appeals court ruled yesterday. A unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals said the 1996 law, which was intended to combat underage drinking, placed an unfair financial burden on student-run publications and hindered their right to free speech while doing little to achieve its goal.

The law was challenged by The Pitt News, a student-run paper at the University of Pittsburgh.

In the 17-page opinion in The Pitt News v. Pappert, Judge Samuel Alito said the state faces a heavy burden anytime it tries to restrict speech, but had offered only "speculation" and "conjecture" to support its contention that the ad ban would slacken the demand for alcohol by underage Pitt students.

"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," he wrote.

The law's crafters had tried to avoid a free-speech challenge through a technicality: Instead of barring student publications from promoting alcohol, the state made it illegal for them to be paid for doing so.

Alito rejected that strategy. "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," he wrote.

The ruling could be a financial boon for other college newspapers, many of which eschew school funding so that they may retain their editorial independence, and are reliant on advertising revenue to survive.

In its suit, The Pitt News said it lost $17,000 in ad sales after the state stepped up enforcement of the ban in 1999. Some bars and restaurants near the campus stopped advertising entirely, rather than alter their ads to remove any reference to alcohol.

The paper's lawsuit was supported by the Pittsburgh chapter of the American Civil Liberties Union, the Student Press Law Center, the Pennsylvania Newspaper Association and the Reports Committee for Freedom of the Press.

Pennsylvania ACLU Litigation Director Witold Walczak called the court's decision "gratifying" yesterday because of his group's previously unsuccessful challenges to the law.