The Pitt News v. Fisher

• Decision Date: 06 June 2000
• Docket Number: No. 99-3545,99-3545
• Citation: 215 F.3d 354
• Parties: (3rd Cir. 2000) THE PITT NEWS, Appellant v. D. MICHAEL FISHER, in his capacity as Attorney General of the Commonwealth of Pennsylvania; MAJOR FRANCIS KOSCELNAK, in his capacity as Director, Bureau of Liquor Control Enforcement, Pennsylvania State Police; JOHN E. JONES, III, in his capacity as Chairman, Pennsylvania Liquor Control Board
• Court: U.S. Court of Appeals — Third Circuit

Page 354

215 F.3d 354 (3rd Cir. 2000)

THE PITT NEWS, Appellant v. D. MICHAEL FISHER, in his capacity as Attorney General of the Commonwealth of Pennsylvania; MAJOR FRANCIS KOSCELNAK, in his capacity as Director, Bureau of Liquor Control Enforcement, Pennsylvania State Police; JOHN E. JONES, III, in his capacity as Chairman, Pennsylvania Liquor Control Board

No. 99-3545

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued February 1, 2000

Filed June 6, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Michael L. Rosenfield, Esq., Pittsburgh, PA. Witold J. Walczak, Esq. (Argued), American Civil Liberties Union, Pittsburgh, PA, Attorneys for Appellant.

J. Bart DeLone, Esq. (Argued), Office of Attorney General of Pennsylvania, Harrisburg, PA. Charles B. Schweitzer, Office of Attorney General of Pennsylvania, Pittsburgh, PA, Attorneys for Appellee.

BEFORE: MANSMANN, NYGAARD, and RENDELL, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

I. INTRODUCTION

Appellant, The Pitt News, is a student-run newspaper at the University of Pittsburgh. It sought to enjoin the enforcement of a 1996 amendment to the Commonwealth of Pennsylvania's Liquor Code, codified at 47 P.S. 4-498(e)(5) and known as "Act 199." This amendment provides criminal sanctions against businesses that advertise alcoholic beverages in newspapers and other materials "published by, for or in behalf of any educational institution." Id. The Pitt News sought declaratory and preliminary injunctive relief pursuant to 42 U.S.C. 1983, arguing that Act 199 violates the First Amendment.

The District Court denied the motion for a preliminary injunction, holding that The Pitt News lacked standing to bring this challenge because only advertisers, and not the newspaper itself, are subject to prosecution under Act 199. Because the District Court reasoned that The Pitt News felt only indirect economic effects resulting from a regulation aimed at third parties, it held that the newspaper did not suffer an injury to its own constitutionally protected interests, and therefore was not a proper party to bring this challenge.¹ The Pitt News appeals, arguing that its own First Amendment rights have been infringed by Act 199, which has had the effect of reducing its advertising revenue, and thereby the length of its publication. The Pitt News also claims that it may assert the constitutional rights of its former advertisers and its adult readers, neither of whom are parties to this litigation.

We hold that The Pitt News does have standing to argue that Act 199 infringes upon its own First Amendment rights. However, The Pitt News lacks standing to challenge Act 199 on behalf of these third parties. We will therefore proceed to the merits of the preliminary injunction only on the question of whether the economic effect felt by The Pitt News amounts to a violation of its own First Amendment rights. We hold that it does not, and will affirm.

II. JURISDICTION

The District Court exercised jurisdiction over this matter pursuant to 28 U.S.C. 1331, 1343, and 2201. We have jurisdiction over this appeal pursuant to 28 U.S.C. 1292(a)(1).

III. FACTS and PROCEEDINGS

The Pitt News is a student-run newspaper, published under the supervision of the University of Pittsburgh. Students have full editorial control over the content of the newspaper, and it is entirely supported by advertising revenue. It is distributed free of charge in racks at 75 locations around the school campus. It is read by University of Pittsburgh students and faculty, as well as by members of the public at large. Approximately 75% of its readers are 21 years of age or older.

In 1996, the Commonwealth of Pennsylvania enacted the challenged amendments to the Pennsylvania Liquor Code known as Act 199, codified at 47 P.S. 4-498(e)(5). Act 199 provides that:

(e) The following shall apply to all alcoholic beverage and malt beverage advertising:

(5) No advertisement shall be permitted, either directly or indirectly, in any booklet, program book, yearbook, magazine, newspaper, periodical, brochure, circular or other similar publication published by, for or in behalf of any educational institution.

(g) For purposes of this subsection, the term "advertisement" shall mean any advertising of alcoholic beverages through the medium of radio broadcast, television broadcast, newspapers, periodicals or other publication, outdoor advertisement or any other printed or graphic matter, including booklets, flyers or cards, or on the product label or attachment itself.

47 P.S. 4-498 (1996) (emphasis added).

Violation of Act 199 is a misdemeanor. Violators may receive a fine of between $ 100 and $ 500 for a first offense, or imprisonment for up to three months. A second offense carries a mandatory minimum sentence of three months in jail. Although there is no legislative history explaining the purpose of Act 199, the Commonwealth asserts that it was designed to address problems of underage drinking on campus, as well as binge drinking on campus by both adults and minors.

Violations of Act 199 are investigated, and arrests are made, by the Bureau of Liquor Control Enforcement("BLCE") of the Pennsylvania State Police. However, the Pennsylvania Liquor Control Board ("LCB") issues interpretations of state liquor laws that are binding on the BLCE. The LCB has ruled that Act 199 can only be enforced against liquor licensees or manufacturers. Thus, a bar or restaurant that advertises drink specials or other information pertaining to alcoholic beverages in The Pitt News could be subject to criminal sanctions, but The Pitt News or its staff could never be prosecuted.

In December of 1997, a restaurant called the "Fuel & Fuddle," which placed alcohol-related advertisements in The Pitt News, was cited for violation of Act 199. This in turn led it to cancel its contract with The Pitt News . It is uncontested that this prosecution led other advertisers to cancel their contracts as well, resulting in a direct loss to The Pitt News of more than $ 17,000 in advertising revenue.²

Because The Pitt News follows a "50/50" format, whereby it must run equal proportions of advertising and text, this reduction in advertising caused The Pitt News to shorten its newspaper, thereby losing space in which to print student articles and photographs. Additionally, the loss of revenue threatens the newspaper's ability to purchase new equipment and make renovations to its facilities, and has placed it in a competitive disadvantage in the marketplace.

The Pitt News sued the defendant appellees, who are D. Michael Fisher, the Pennsylvania Attorney General; Major Francis Koscelnak, the Director of the BCLE; and John E. Jones, III, the Chairman of the LCB. The Pitt News sought declaratory and injunctive relief under 42 U.S.C. 1983, alleging that enforcement of Act 199 violates its rights and/or those of its advertisers and adult readers under the First Amendment. The District Court held a hearing on the motion for a preliminary injunction, and ruled that The Pitt News did not have sufficient standing to bring this suit. The District Court reasoned that The Pitt News could not make out a violation of its own First Amendment rights:

The harm that [The Pitt News] has suffered, and may suffer in the future, has been, and will be, economic, and the harm has not affected, and will not affect, the rights of The Pitt News to freedom of speech or of the press. Because the injury suffered, or to be suffered, by The Pitt News arising from the enforcement of Section 4-498(e)(5) of Act 199 is not, and will not be, a concrete and particularized invasion of a legally protected interest of The Pitt News, but, rather, an indirect economic injury, The Pitt News has failed to establish its standing to assert its request for a preliminary injunction.

Dist. Ct. Op. at 21-22, P 29.

IV. DISCUSSION

Standing consists of both a "case or controversy" requirement stemming from Article III, Section 2 of the Constitution, and a subconstitutional "prudential" element. To demonstrate Article III standing, plaintiffs must demonstrate that they have suffered an injury-in-fact, that the injury is causally connected and traceable to an action of the defendant, and that it is redressable. See Doe v. Nat'l Bd. of Med. Exam'rs, 199 F.3d 146, 152-53 (3d Cir. 1999). Even when this constitutional minimum has been met, judicially created prudential limitations may defeat a party's standing to maintain a suit. See Fair Hous. Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71, 75 (3d Cir. 1998).

As discussed infra, we conclude that The Pitt News has demonstrated Article III standing to bring this suit on its own behalf. However, prudential limitations prevent it from asserting the constitutional rights of its former advertisers or current adult readers, who are not parties to this case.

A. Article III Standing

1. Injury in Fact

To have Article III standing, The Pitt News must first demonstrate that it has suffered an injury-in-fact. This injury must be concrete and particularized,³ and actual or imminent, as opposed to conjectural or hypothetical. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). "[T]he injury must affect the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560-61 and n.1, 112 S. Ct. at 2136 and n.1.

The Pitt News has demonstrated a personal stake in the outcome of this litigation. It has lost approximately $ 17,000 in advertising revenue as a result of the enforcement of Act 199 against one of its advertisers. The Pitt News claims that this amounts to a violation of its First Amendment rights. As discussed in sub-section C, infra, we disagree that The Pitt News' First Amendment rights have been violated. However, our determination of the likelihood of success on the merits of the case is a separate inquiry from the threshold issue of Article III s...