DISPOSITION: affirmed (in favor of Pitt News)


JUDGES: Authored by Kirsten Larson and Harry Hixon with whom Chief Justice Jim Hanson joins

Justice Harry Hixon also filed a concurring opinion



MATTHEW DUBAY, Appellant, v. LAUREN WELLS, Respondent



October 25, 2009, Filed


PRIOR HISTORY: Appeal from the United States Court of Appeals for the Sixth Circuit No: 379-96.  Date filed: July 29, 2004.


COUNSEL: For Appellant: Ryan Piela, Walla Walla, WA. 

For Respondent: Jacob Cappel, Walla Walla, WA.



I. Facts of the Case

            The Pitt News is a student run newspaper at the University of Pittsburgh. In 1996, the Pennsylvania Legislature enacted an amendment to the State Liquor Code that is known as “Act 199.” A provision of this amendment, Section 4-498, prohibits “any advertising of alcoholic beverages” in virtually any medium of mass communication that is affiliated with “any educational institution” including colleges or universities. Because of this amendment, advertisers withdrew their advertisements from The Pitt News.



II. Decision

            A. Audience of the Advertisements

            The amendment to the State Liquor Code, Section 4-498 known as “Act 199,” restricts alcohol advertisement in educational institutions. It was applied to The Pitt News, even though a majority of the audience of the advertisements is able to drink legally. According to appellant’s brief, two thirds of the student population is 21 and over, thus being of legal drinking age. Also, more than three fourths of the total university population is over the age of 21. As the majority (over 70 percent) of the readership for The Pitt News is of legal drinking age, it is not within the statute’s power to restrict their publication. As the statute states, “Nothing in this section shall be deemed to restrict or prohibit any advertisement of alcoholic beverages to those persons of legal drinking age.” The statute explicitly states that it does not intend to prevent individuals of legal drinking age from viewing advertisements for alcohol. 

            Also important to note is that there are other free newspapers on the campus which are allowed to advertise alcohol, including In Pittsburg, City Paper, and UR Pittsburg (The Pitt News v. Pappert 379 F.3d 96 (2004)).. Given that these papers are also available to the students, restricting The Pitt News from publishing these advertisements is a curious way to prevent the students from seeing these advertisements. As the appellant argues, decreasing underage drinking might justify a ban on alcohol advertisements which might encourage this behavior. However, in a setting where minors can still view other alcohol advertisements, this purpose clearly cannot be met. 

            B. Exposure to other Alcohol Advertisements

            As the Respondent notes, these students will be bombarded with advertisements for alcohol even if the advertisements are not allowed in the student newspaper. The previous court stated that University of Pittsburgh students “will still be exposed to a torrent of beer ads on television and the radio” (The Pitt News v. Pappert 379 F.3d 96 (2004)). By watching television, listening to the radio or observing billboards, underage students would still have ample exposure to alcohol advertisements. If the interest was truly to decrease the overall exposure of students to any alcohol advertisement, steps might have also been taken to restrict their exposure to these advertisements through other media sources as well. However, given the statute’s application to only the student newspaper on campus, it is clear this law is singling out a media source for treatment different from other media sources.

C.    4-498 does not pass strict scrutiny

As this case deals with First Amendment rights guaranteed by the U.S. Constitution, strict scrutiny is the appropriate test to apply to this case. In Sherbert v. Warner, the Court applied strict scrutiny, as the case dealt with the First Amendment issue of freedom for religious exercise. As this case affects the First Amendment rights, the use of strict scrutiny is appropriate.

1. Compelling State Interest

            One of the aspects of strict scrutiny is that the law must achieve a fundamental state interest. In this case, the governmental interest being discussed is the prevention of excessive underage drinking. The issues and problems surrounding underage drinking have been widely discussed. One issue is the increase in alcohol dependency that occurs when minors drink. According to the Journal of Substance Abuse, “Americans who began drinking before the age of 15 are four times more likely to develop alcohol dependence than those who wait until the age of 21.”[1] Also, according to Biological Psychiatry, the onset of alcohol dependency peaks at 18 years of age.[2] Given the impact that drinking as minors can have on future alcohol dependency, it is a compelling state interest to prevent children from drinking before it is legal. Thus, the statute stands in protecting a compelling state interest.

2. Narrowly Tailored

            In Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555, 121 S.Ct. 2404, 150 L.Ed.2d 543 (1993), the Supreme Court ruled that a restriction on tobacco advertising was not narrowly tailored in part because it prevented the communication to adults of truthful information about products they could lawfully purchase. In this case, the state exclusively asserts an interest in reducing underage drinking. As the majority of the individuals on campus are of legal drinking age, their exposure to these advertisements should not be restricted in an attempt to decrease drinking among the minority of the student body.

            This statute is not narrowly tailored since it is preventing the communication of information to adults which is explicitly and obviously not part of the state’s asserted interest. This restrictive nature of the statute is overbroad and it impacts the ability of individuals of legal drinking age from seeing alcohol advertisements, which they have the legal right to see.

3. Least Restrictive Means

            As stated in Anheuser-Busch Inc v. Schmoke 63 F.3d 1305 (1995), a statute is the least restrictive means if it “is not more extensive than is necessary to serve the stated governmental interest.” The appellant argues that this amendment is not more extensive than necessary. However, this amendment does not allow the other readers of The Pitt News to see these advertisements even though they may be of legal drinking age. Thus, by extending to other portions of the populations that do not need to be affected by this restriction, this law is more extensive than necessary to achieve the governmental interest of preventing underage drinking.

            Given that the students will continue to see alcohol advertisements in other media, Section 4-498 does not achieve the governmental interest in the least restrictive way. Since students will be able to see advertisements for alcoholic beverages in other newspapers and other means of media, restricting these advertisements in The Pitt News is neither the least restrictive nor the most effective way of dealing with the issue of underage drinking.

            The state has other means that can be employed to stop underage drinking. These could include greater alcohol education, patrolling of the student dormitories or increased severity of punishment of those caught drinking underage. These means would have a greater chance of actually impacting the number of students on campus drinking when not of the legal age. Thus it would be more effective in achieving the state interest.

            The appellant also claimed that the statute still allows The Pitt News to publish views on alcohol and hence meets the least restrictive test. However, the issue is not just one of expressing opinions on alcohol. Rather, most importantly, it is about the state singling out a media source and restricting its revenue source, necessary to its ability to publish news and opinion. As stated by the previous court, “laws that impose financial burdens on the media or a narrow sector of the media present a threat to the First Amendment” The Pitt News v. Pappert 379 F.3d 96 (2004). Financial burdens such as these can harm the vital role the media plays in fulfilling the First Amendment including decreasing the length of paper they are able to print. By harming the paper, the state thereby restricts the First Amendment rights assured to the newspaper. Given that this law would take away a substantial amount of the newspaper’s proceeds from advertising, it poses a threat to the newspaper’s First Amendment rights. While the government interest of decreasing underage drinking is important, fair application of First Amendment rights must be given priority given the minimal achievement of the state’s interests. As a matter of strict scrutiny, statutes that endanger First Amendment rights while achieving little for the state interest cannot stand as constitutional.



D. 4-498 unconstitutionally restricts disfavored speech

            This being established, free speech need not be limited in this case.  It is true that the court has limited the First Amendment, commercially and otherwise.  Here however, Pitt News' right to advertise does not violate the reasonable test of limitation.  As mentioned in the argumentation put forth by the respondent, the precedent of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York backs the previous court's decision that Pitt News is within their rights because, above all else, the relationship between advertisements and government interest (preventing underage drinking) is too broadly interpreted by the appellant for section 4-498 to be constitutional.  Justice Samuel Alito acutely pointed out “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. 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.” 

Central Hudson where the main dispute centered on advertisements “encouraging the use of electricity” supported this conclusion when it established four tests, one of which is very important in deciding when the court may limit the First Amendment:  The second test requires limits to be narrowly drawn.  This is not so with section 4-498. As mentioned earlier, in the case of Pitt News, the respondent is not (as with Central Hudson) actually the advertiser, but the media in this case.  If 4-498 is allowed to apply not only to the creator and purveyor of supposedly anti-state-interest speech, but to the media vehicle through which the advertisement reaches the public, this violates the “narrowly drawn” criterion.  Either Pitt News is not the appropriate defendant, or 4-498 is drawn too broadly.  As the respondent noted, alcohol ads are ever-present in both competing newspapers and other forms of media advertisement visible to the audience of Pitt News.


E. The Importance of the Media to the First Amendment

            Media, by its very nature, is the ultimate vehicle of the First Amendment.  Great care should be taken when limiting the media’s rights, and when limitation is necessary, all other possible options and vehicles (the advertisers in this case) should be explored long before limiting the messenger.  Even Code 4-498, and the Liquor Control Board regulators, acknowledge this outright.  This is for the vital purpose of assuring that governmental interests do not wantonly restrict expression—allowing direct regulation of the vehicle of free speech, in its utmost form, opens the door to a great deal of other First Amendment violations.


F. An unconstitutional penalty on the Media

            Establishing how the respondent is within their rights, we affirm the previous court’s ruling that PA Act “199”, Code 4-498, is unconstitutional.  The commercial element of Pitt News’ advertising illustrates perfectly why Code 4-498 is against constitutional law, both in precedent and reason.  Justice Alito notes: “Section 4-498 imposes "a financial disincentive" on certain speech by The Pitt News (alcoholic beverage ads) because would-be advertisers cannot pay the paper to run such ads, and consequently Section 4-498, like New York's Son of Sam law, must be analyzed as a content-based restriction of speech.” Pitt News v. P, at 27, 3d Cr.  The New York’s Son of Sam law refers to the case of Simon & Schuster, Inc. v. Members of the New York State Crime Victims where a publishing company was sued for profiting from a biography of a criminal—the facts of which were based on interviews with Henry Hill, the criminal himself.  The law in contest, which was struck down, placed financial disincentives on the profiting from free speech of specific speech content—that of convicts.  The Court ruled that the publisher was allowed to maintain its uninhibited pay to Henry Hill in exchange for publishing his free speech.  Justice O’Connor noted in the prevailing opinion: “A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech” S v. M, at 28, USSC.

            Pennsylvania Code 4-498 fits this description perfectly:  It is a statute imposing a financial burden on those who choose to present speech with a particular content.  In this case, as opposed to criminal activity, it is alcohol (legal) but it is for commercial purposes just as with Simon & Schuster, Inc.  Precedent withstanding, the logic behind it is quite clear in its relevance to a modern, commercial world, where speech is often interstate, and, even if commercially involved, not always a commercial message.  Alito recalls an example of specialized commercial disincentives being used for political purposes, yet guised under legal justification:

The Supreme Court recognized long ago that laws that impose special financial burdens on the media or a narrow sector of the media present a threat to the First Amendment. In Grosjean v. Am. Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936), Louisiana had imposed a special 2% gross receipts tax on newspapers with circulations of more than 20,000. The Court noted that the form of the tax made it plain that its purpose was to penalize and curtail the circulation of "a select group of newspapers," namely, as the Court later pointed out, the state's large papers, which had attacked Governor Huey Long. See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 579-80, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983). Holding this tax unconstitutional, the Court wrote:

The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be in presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves. Grosjean, 297 U.S. at 250, 56 S.Ct. 444.”

            Code 4-498 can easily be misused to abuse the First Amendment with the same legal justifications as seen in Pitt News v. Pappert, but with the ulterior motives of Grosjean.  A law with such broad implications not only fails on the previously mentioned criteria of limited infringement, but also fails on the basis of the wide doors to abuse it opens.


G. Conclusion

            PA Code 4-498 specifically limits both the media and advertisers with specific, discriminating, and unequal financial disincentives.  Court precedent in multiple cases opposes every aspect of 4-498:  The target of the disincentives is over-specific, the range of possible targets it opens to specific state discrimination is too broad, the disincentives are inconsistent with typical commercial regulation allowed involving the First Amendment, and ultimately, this Code allows the targeting of a school run outlet of free speech using damage to its profitability to gain silence in marginal defense of vague state interest.  The audience being well above and beyond a reasonable majority of legal drinkers, the advertisements themselves advocating only legal action, and the newspaper itself commercially damaged and silenced by Code 4-498, the Hanson Court must affirm the 3rd Circuit Court of Appeals decision to rule in favor of this cases’ respondent, and to deem PA Code 4-498 in violation of the Constitution.


JUSTICE HARRY HIXON CONCURRING (the two other justices did not participate in this portion of the decision)

4-498 does not apply to Pitt News; only to advertisers

Pitt News’ advertisement of alcohol was well within their rights.  In the Third Circuit Court of Appeals, it was made clear that, even if we were to establish a reasonable right to limit the First Amendment through section 4-498 of Pennsylvania law, the law brought up as the main justification for limiting Pitt News is meant to restrict the free speech not of the host of the advertisement, but of the advertiser.  Thus, even if we were to establish a reasonable right of the state to limit free speech in this instance, the respondent, a newspaper, would not be appropriate for the court to limit.  Justice Alito, in his opinion for the Third District Court, put it best: “During testimony in this case, a representative of the LCB, Faith S. Diehl, stated that, in the LCB's view, Section 4-498 contains two restrictions that are not expressly set out in the statute…Diehl testified that Section 4-498 is enforceable only against advertisers and not against the media” Pitt News v. Pappert, 379 F.3d 96, 113 (3d Cir. 2004).  This allows the court to preemptively avoid deciding whether 4-498 is constitutional in this case—4-498 does not apply to Pitt News, but the alcohol advertisers themselves.



[1] B.F. Grant, D.A. Dawson, "Age at onset of alcohol use and its association with DSM-IV alcohol abuse and dependence: Results from the National Longitudinal Alcohol Epidemiologic Survey," Journal of Substance Abuse 9 (1997): 103-110.

[2] 9T.K. Li, B.G. Hewitt, and B.F. Grant, "Alcohol Use Disorders and Mood Disorders: A National Institute on Alcohol Abuse and Alcoholism Perspective," Biological Psychiatry 56, no. 10 (15 Nov 2004): 718-720.