The Pitt News v. Fisher

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

6-6-2000

The Pitt News v. Fisher

Precedential or Non-Precedential:

Docket 99-3545

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation

"The Pitt News v. Fisher" (2000). 2000 Decisions. Paper 119.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/119

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed June 6, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3545

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

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 99-cv-529)

District Judge: The Honorable William L. Standish

ARGUED FEBRUARY 1, 2000

BEFORE: MANSMANN, NYGAARD, and RENDELL,

Circuit Judges.

(Filed June 6, 2000)

Michael L. Rosenfield, Esq.

1808 Law & Finance Building

Pittsburgh, PA 15219

Witold J. Walczak, Esq. (Argued)

American Civil Liberties Union

313 Atwood Street

Pittsburgh, PA 15213

Attorneys for Appellant

J. Bart DeLone, Esq. (Argued)

15th Floor

Office of Attorney General of

Pennsylvania

Strawberry Square

Harrisburg, PA 17120

Charles B. Schweitzer

Office of Attorney General

of Pennsylvania

564 Forbes Avenue

Manor Complex

Pittsburgh, PA 15219

Attorneys for Appellee

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.S4-498(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.S 1983,

arguing that Act 199 violates the First Amendment.

2

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. SS 1331, 1343, and 2201. We have

jurisdiction over this appeal pursuant to 28 U.S.C.

S 1292(a)(1).

III. FACTS and PROCEEDINGS

The Pitt News is a student-run newspaper, published

under the supervision of the University of Pittsburgh.

_________________________________________________________________

1. The District Court also reasoned, in the alternative, that even if The

Pitt News had standing to pursue the preliminary injunction, it had

failed to establish that the enforcement of Act 199 had caused the

newspaper irreparable injury, as would be required for preliminary

injunctive relief. See Dist. Ct. Op. at 22,P. 30.

3

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. S4-498(e)(5). Act 199

provides that:

(e) The following shall apply to all alcoholic bev erage

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

Violation of Act 199 is a misdemeanor. Violators may

receive a fine of between $100 and $500 for afirst 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

4

("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.S 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

_________________________________________________________________

2. This amount does not include potential lost revenue from new

business.

5

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

6

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 standing. To demonstrate its

standing to sue, a plaintiff must only allege that they have

suffered sufficient injury to comply with Article III's "case or

controversy" requirement. See Department of Commerce v.

United States House of Representatives, 525 U.S. 316, 329-

30, 119 S. Ct. 765, 772-73, 142 L. Ed. 2d 797 (1999);

Secretary of State of Maryland v. Joseph Munson Co., Inc.,

467 U.S. 947, 958-59, 104 S. Ct. 2839, 2848, 81 L. Ed. 2d

947 (1984) (question of whether challenged statute was

substantially overbroad was question better left for merits,

not resolved as part of standing inquiry). The threshold

standing inquiry is analogous in this regard to the

threshold question of Article III subject matter jurisdiction,

where the failure to state a claim upon which relief can be

granted does not mean that federal question jurisdiction is

lacking. See Steel Co. v. Citizens for a Better Env't, 523 U.S.

83, 89, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d 210 (1998);

_________________________________________________________________

3. This Article III injury requirement is related to the prudential rule,

discussed infra, that litigants should not assert the rights of third

parties

unless they have a "sufficiently concrete interest in the outcome of [the]

suit to make it a case or controversy." Singleton v. Wulff, 428 U.S. 106,

112 96 S. Ct. 2868, 2873, 49 L. Ed. 2d 826 (1976). These two

requirements are thus "not completely severable." Secretary of State of

Maryland v. Joseph Munson Co., Inc., 467 U.S. 947, 955-56 n.5, 104 S.

Ct. 2839, 2846 n.5, 81 L. Ed. 2d 947 (1984).

7

Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776, 90 L.

Ed. 939 (1946). The Pitt News has alleged a sufficiently

personal injury to satisfy the "injury in fact" requirement of

Article III standing.

2. Traceability

Next, to determine whether The Pitt News has Article III

standing we must ascertain whether the alleged injury-in-

fact is causally connected and traceable to an action of the

defendants. See Doe v. National Bd. of Med. Exam'rs, 199

F.3d 146, 152-53 (3d Cir. 1999). One could argue that the

injury alleged by The Pitt News is not fairly traceable to the

enforcement of Act 199, because the harm felt by the

newspaper results from the independent acts of third

parties. The Pitt News has lost revenue because its

advertisers decided to stop paying to place advertisements

in the newspaper. Therefore, arguably, any harm to The Pitt

News was caused by the independent action of these third-

party advertisers, and did not result from the enforcement

of Act 199 itself.

We reject this argument, and conclude that the injury

alleged by The Pitt News is fairly traceable to the

enforcement of Act 199. To analogize this situation to a

familiar example in tort law, the enforcement of Act 199

was the cause-in-fact of the financial impact felt by The Pitt

News. `But for' this enforcement, its advertisers would not

have canceled their contracts. See Murray v. Fairbanks

Morse, 610 F.2d 149, 160 (3d Cir. 1979) (distinguishing

between causation-in-fact and proximate cause based on

foreseeability and intervening acts). This result was not

only reasonably foreseeable when the Commonwealth

decided to enact and enforce Act 199, see id. , it was the

very goal of the statute.

Bennett v. Spear, 520 U.S. 154, 169, 117 S. Ct. 1154,

1164, 137 L. Ed. 2d 281 (1997), supports the conclusion

that The Pitt News' alleged injury meets the traceability

prong of the standing inquiry. In Bennett, the plaintiff sued

one government agency, `Agency A,' which had coerced a

second agency, `Agency B,' into enacting certain regulations

that injured the plaintiff. The Court held that the plaintiff

8

had standing to sue `Agency A,' even though it did not

actually enact the regulations at issue. The rationale was

that the plaintiff's injuries were directly traceable to the

actions of `Agency A,' because `Agency B' would not have

enacted the challenged regulation `but for' the actions of

`Agency A.' Following this logic, The Pitt News' alleged injury

is, for standing purposes, also fairly traceable to the acts of

the defendant-appellees.4

3. Redressability

Finally, the plaintiff only has Article III standing if "it is

likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision." Friends of the Earth,

Inc. v. Laidlaw Envtl. Serv., Inc., ___ U.S. ___, 120 S. Ct.

693, 704, 145 L. Ed. 2d 610 (2000). On these facts, it is not

"merely speculative" that The Pitt News will see a dramatic

increase in its advertising revenues if Act 199 is struck

down as unconstitutional. Enforcement of Act 199 clearly

led The Pitt News' advertisers to cancel their contracts with

the student newspaper. Although these advertisers have

since utilized other methods for distributing their message

to their target audience, we may assume based on the past

revenues generated by The Pitt News and the sudden drop-

off in those revenues after the enforcement of Act 199

against one of its advertisers, that its past advertisers

and/or new businesses are likely to continue to advertise

alcoholic beverages in The Pitt News if it becomes legal for

them to do so.

The Pitt News therefore has Article III standing to bring

its claim, at least to the extent that its own rights are

_________________________________________________________________

4. Of course our conclusion regarding traceability in the standing context

is not the same as a determination that the alleged injury flows from an

actual violation of The Pitt News' First Amendment rights. A party may

demonstrate standing to litigate a claim even if they fail to make out a

constitutional violation on the merits. There is thus no inconsistency

between our holding that the injury to The Pitt News was fairly traceable

to the enactment and enforcement of Act 199 for standing purposes, and

our discussion, infra, holding that The Pitt News suffered only an

indirect injury that did not amount to a violation of its First Amendment

rights on the merits.

9

concerned, because it has made sufficient allegations that

it suffered an injury-in-fact that is fairly traceable to the

actions of the defendant-appellees, and that is likely to be

redressable by an action of this Court.

B. Prudential Standing

We turn now to the prudential factors that affect The Pitt

News' ability to raise the rights of third parties. In addition

to asserting its own rights, The Pitt News also attempts to

argue that enforcement of Act 199 violates the First

Amendment rights of its former advertisers, who are subject

to the provisions of the statute, as well as those of its adult

readers.5 However, the federal courts adhere to a prudential

rule that "[o]rdinarily, one may not claim standing . . . to

vindicate the constitutional rights of some third party."

Singleton v. Wulff, 428 U.S. 106, 114, 96 S. Ct. 2868, 2874,

49 L. Ed. 2d 826 (1976) (quoting Barrows v. Jackson, 346

U.S. 249, 255, 73 S. Ct. 1031, 1034, 97 L. Ed. 1586

(1953)). We apply this prudential rule against third party

standing6 even when the requirements of Article III have

been met, to "avoid deciding questions of broad social

import . . . [and] to limit access to the federal courts to

those litigants best suited to assert a particular claim."

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-

100, 99 S. Ct. 1601, 1608, 60 L. Ed. 2d 66 (1979).

There is, however, a narrow exception to the prohibition

on third party standing, provided three criteria are

satisfied. First, the plaintiff must have suffered an actual

injury, although not necessarily one to its own legally

protected interests. See Powers v. Ohio, 499 U.S. 400, 411,

_________________________________________________________________

5. Although it can be difficult to draw a distinction between the two, the

First Amendment rights of both speakers and listeners can be implicated

by government regulation. See, e.g., Reno v. American Civil Liberties

Union, 521 U.S. 844, 874-75, 117 S. Ct. 2329, 2346, 138 L. Ed. 2d 874

(1997) (Government's legitimate interest in protecting children "does not

justify an unnecessarily broad suppression of speech addressed to

adults.").

6. This prudential rule is also referred to as the rule against bringing

jus

tertii claims. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804,

105

S. Ct. 2965, 2970, 86 L. Ed. 2d 628 (1985).

10

111 S. Ct. 1364, 1370-71, 113 L. Ed. 2d 411 (1991).

Second, the plaintiff must have a close enough relationship

with the party whose rights he or she is asserting,"thus

giving him or her a `sufficiently concrete interest' in the

outcome of the issue in dispute" and ensuring that the

plaintiff will be an effective advocate. Id. Third, "there must

exist some hindrance to the third party's ability to protect

his or her own interests." Id. Thus, a plaintiff who meets all

these criteria, but who would otherwise lack Article III

standing to sue because his or her own legally protected

rights were not injured, may assert the rights of a third party.7

The impact felt by such a plaintiff, combined with the

nexus between the plaintiff's injury and the rights of the

third party, are sufficient to satisfy both Article III's

constitutional requirements and judicially-created

prudential concerns.

Although The Pitt News has not suffered an injury to its

own constitutionally protected interests, it has nonetheless

sustained a sufficient injury-in-fact, as a result of its lost

advertising revenue, to satisfy the exception'sfirst criterion.

It also has a sufficiently close relationship with the third

party advertisers to satisfy the exception's second criterion,

because of the contractual relationship that existed

between them.8 The problem with The Pitt News' attempt to

_________________________________________________________________

7. See, e.g., Craig v. Boren , 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d

397 (1976) (beer vendor given standing to challenge statute that

prevented males between the age of 18 and 21 from buying beer, after

an original plaintiff in case turned 21 -- it would presumably be

difficult

for any plaintiff to litigate up to the Supreme Court within the three

years before his case became moot); Singleton v. Wulff, 428 U.S. 106, 96

S. Ct. 2868, 49 L. Ed. 2d 826 (1976) (doctor could challenge regulation

on abortion on behalf of pregnant women when his fees were at stake --

it would be virtually impossible for any pregnant woman to litigate her

case to the Supreme Court before it became moot); NAACP v. Alabama,

357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958) (NAACP can

assert right to privacy of its members to avoid necessity of their

appearing in court, and therefore losing the right they were trying to

assert); Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed.

1586 (1953) (allowing white property owner to challenge racially

restrictive covenant on land because African-American attempting to buy

land from him would not have standing to make such a challenge).

8. We will assume that The Pitt News also has a sufficiently close

connection with its readers to satisfy this criterion as well. Because we

conclude that The Pitt News may not assert third party standing in this

case, we need not decide this question.

11

assert the rights of third parties lies with thefinal criterion.

The Pitt News has not demonstrated that the advertisers

actually subject to Act 199, or its adult readers, have any

impediment to bringing their own suit to challenge the

statute. In most cases, we would therefore conclude at this

point that the plaintiff could not assert third party

standing. However, we must consider whether the assertion

of First Amendment rights in this case requires us to relax

this third criterion.

The Pitt News raises Simon & Schuster, Inc. v. Members of

the New York State Crime Victims Board, 502 U.S. 105, 112

S. Ct. 501, 116 L. Ed. 2d 476 (1991) to support its

argument that First Amendment challenges are not subject

to the jus tertii prudential rule. In Simon & Schuster, a book

publisher challenged a statute affecting profits from books

written by perpetrators about their crimes. Publishers were

required by the statute at issue to place the author's share

of profits from these books into escrow. The escrow fund

was then used to pay off perpetrators' civil liability to their

victims. The Pitt News argues that because the publisher in

that case had standing to sue, it should as well. However,

the Supreme Court avoided addressing the standing issue

in Simon & Schuster, noting that whether the proper litigant

was the publisher or the author, the results would be the

same. See Simon & Schuster, Inc., 502 U.S. at 116, 112 S.

Ct. at 508. The case is therefore inconclusive. Because

Simon & Schuster is not dispositive, we will turn instead to

a line of authority specifically addressing the availability of

third party standing when First Amendment rights are at

stake.9

In Secretary of State of Maryland v. Joseph Munson Co.,

Inc., 467 U.S. 947, 104 S. Ct. 2839, 81 L. Ed. 2d 947

(1984), the plaintiff was a professional, for-profit fund-

raising company. Maryland enacted a statute prohibiting

charitable organizations from paying or agreeing to pay

more than 25% of the proceeds from fundraising events as

expenses.10 Munson claimed that it regularly charged more

_________________________________________________________________

9. Although neither party discussed this line of authority, we find it

helpful to our analysis.

10. An exception was made if a charitable organization was otherwise

unable to raise funds.

12

than 25% of the gross for the fund-raising events it

organized on behalf of its clients. Munson stated in its

complaint that its customers were reluctant to do business

with it as a result of the enactment of the statute, and also

that the Secretary of State told Munson that the company

would be subject to prosecution under the statute. See

Joseph Munson Co., Inc., 467 U.S. at 954-55, 104 S. Ct. at

2845-46. The Supreme Court held that Munson did have

standing to assert the First Amendment rights of its clients,

because the company suffered an injury-in-fact that

complied with Article III's standing requirements, and

because Munson could adequately frame the issues

regarding the rights of these third parties.

In discussing standing, the Munson Court noted the

general prudential limitation that plaintiffs generally cannot

assert "the legal rights or interests of third parties." Joseph

Munson Co., Inc., 467 U.S. at 955, 104 S. Ct. at 2846

(quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct.

2197, 2205, 45 L. Ed. 2d 343 (1975)) (additional citations

omitted). However, the Court concluded that when a

plaintiff attempts to challenge a statute as being an

overbroad restriction on First Amendment rights, the

requirement that an impediment exist to the third party

asserting his or her own rights should be relaxed:

Even where a First Amendment challenge could be

brought by one actually engaged in protected activity,

there is a possibility that, rather than risk punishment

for his conduct in challenging the statute, he will

refrain from engaging further in the protected activity.

Society as a whole then would be the loser. Thus, when

there is a danger of chilling free speech, the concern

that constitutional adjudication be avoided whenever

possible may be outweighed by society's interest in

having the statute challenged. "Litigants, therefore, are

permitted to challenge a statute [in such a case] not

because their own rights of free expression are violated,

but because of a judicial prediction or assumption that

the statute's very existence may cause others not

before the court to refrain from constitutionally

protected speech or expression."

13

Joseph Munson Co., Inc., 467 U.S. at 956-57, 104 S. Ct. at

2847 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612,

93 S. Ct. 2908, 2916, 37 L. Ed. 2d 830 (1973) (involving

class action challenge to state statute severely curtailing

the types of political activity in which state employees could

engage)). Munson thus holds that the prudential standards

governing the assertion of third party rights may be relaxed

in the First Amendment context, when the Court

determines that society's interest in preventing the chilling

of free speech outweighs the normal prudential concerns

that prohibit jus tertii claims.

The fact that prudential standards may be relaxed in

appropriate cases, however, does not mean we must relax

them in this case. "In determining whether a litigant should

be able to assert third-party rights, a crucial factor is `the

impact of the litigation on the third-party interests.' "

Joseph Munson Co., Inc., 467 U.S. at 956-57 n.7, 104 S. Ct.

at 2847 (quoting Eisenstadt v. Baird, 405 U.S. 438, 445, 92

S. Ct. 1029, 1034, 31 L. Ed. 2d 349 (1972)). To circumvent

the rule against third party standing, the plaintiff must also

demonstrate more than a mere interference with the third

party's rights. "Given a case or controversy, a litigant whose

own activities are unprotected may nevertheless challenge a

statute by showing that it substantially abridges the First

Amendment rights of other parties not before the court."

Village of Schaumburg v. Citizens for a Better Environment,

444 U.S. 620, 634, 100 S. Ct. 826, 834, 63 L. Ed. 2d 73

(1980) (emphasis added) (challenging ordinance prohibiting

all door-to-door or on-street solicitation of funds for

charities failing to use at least 75% of their proceeds for

charitable purposes).

Munson, Eisenstadt, and Village of Schaumburg all

involved substantial threats to free speech, such that third

parties were forced to forego their rights entirely, or else

face criminal prosecution to vindicate them. Thus,

application of the prudential rule against third party

standing "would have [had] an intolerable, inhibitory effect

on freedom of speech" in those cases. Eisenstadt v. Baird,

405 U.S. 438, 445 n.5, 92 S. Ct. 1029, 1034, 31 L. Ed. 2d

349 (1972). They also involved allegations of substantial

overbreadth, such that parties who should not have had

14

their freedom of speech restricted nonetheless found that

freedom chilled. See Harris v. Evans, 20 F.3d 1118, 1122

n.5 (11th Cir. 1994), cert. denied, 513 U.S. 1045, 115 S. Ct.

641, 130 L. Ed. 2d 546 ("The Supreme Court has

recognized that, in certain cases, the risk that a third

party's free speech may be `chilled' by an overbroad statute

or ordinance may warrant the grant of standing to a party

whose speech is not protected by the First Amendment.").

When we look to the effect of Act 199 on the third parties

in the present case, however, as we are required to do by

Joseph Munson Co., Inc., 467 U.S. at 956-57 n.7, 104 S. Ct.

at 2847, we do not see the sort of dangers that have

warranted relaxing prudential requirements in the cases

cited above. The Pitt News has not demonstrated, as part of

its burden in establishing its standing to assert third party

rights, that its former advertisers are likely to have their

speech chilled by the enactment of Act 199, or that there is

a risk they will forego their constitutionally protected rights.

Nor has it demonstrated that adult members of the

University of Pittsburgh community will find their access to

alcohol-related advertisements diluted. In fact, The Pitt

News admits that despite enforcement of Act 199, its

former advertisers have had an easy time delivering their

messages to students and staff of all ages.

[T]he very same ads that are prohibited in The Pitt

News are available to underage students through other

newspapers displayed on campus news racks

immediately adjacent to The Pitt News. . . . Beer and

alcoholic beverage advertisements reach students

under age twenty-one through a variety of magazines,

radio and television advertisements, and sidewalk

billboards, all of which are readily available both on

and near the campus.

Appellant's Br. at 39-40.

The third parties in question have thus not suffered

substantial abridgement of their free speech rights. Instead,

that speech has been channeled to widely available non-

student publications that The Pitt News admits are

distributed at the same locations as its own newspapers.

The content of that speech is thus available to the entire

15

University of Pittsburgh community. The effect on third

parties, therefore, is minimal in this case.11 Because we

must balance the effect of the challenged statute on third

parties against the importance of the prudential rule

prohibiting third party standing, we therefore conclude that

The Pitt News does not qualify for an exception to this

prudential standing rule.12

That Act 199 has not had a sufficiently noticeable effect

on free speech to warrant third party standing should not

be surprising. As the Supreme Court has recognized,"[f]or

the purposes of applying the overbreadth doctrine . . . it

remains relevant to distinguish between commercial and

noncommercial speech." Village of Schaumburg , 444 U.S. at

632 n.7, 100 S. Ct. at 834.

[T]he justification for the application of overbreadth

analysis applies weakly, if at all, in the ordinary

commercial context. . . . [T]here are `commonsense

differences' between commercial speech and other

varieties. Since advertising is linked to commercial

well-being, it seems unlikely that such speech is

particularly susceptible to being crushed by overbroad

regulation. Moreover, concerns for uncertainty in

determining the scope of protection are reduced. . .

Since overbreadth has been described by this Court as

`strong medicine,' which `has been employed . . .

sparingly and only as a last resort,' Broadrick v.

Oklahoma, 413 U.S., at 613, 93 S. Ct., at 2916, we

decline to apply it to professional advertising, a context

where it is not necessary to further its intended

objective.

Bates v. State Bar of Arizona, 433 U.S. 350, 380-81, 97 S.

Ct. 2691, 2707-08, 53 L. Ed. 2d 810 (1977) (citations

omitted). See also Central Hudson Gas & Elec. Corp. v.

_________________________________________________________________

11. We note that even the "Fuel & Fuddle," which was actually

prosecuted under Act 199, did not find it worthwhile to challenge its

constitutionality. This fact is of course hardly dispositive, as many

factors go into a decision whether or not to litigate.

12. In reaching this conclusion with regard to third party standing, we of

course reach no conclusions regarding whether Act 199 may be

successfully challenged on other constitutional grounds.

16

Public Serv. Comm'n of New York, 447 U.S. 557, 564 n.6,

100 S. Ct. 2343, 2350, 65 L. Ed. 2d 341 ("[C]ommercial

speech, the offspring of economic self-interest, is a hardy

breed of expression that is not `particularly susceptible to

being crushed by overbroad regulation.' "). The same

reasoning that underlies the limitation of the application of

an overbreadth challenge in the commercial context also

supports our limitation on third party standing in this

context.

C. Likelihood The Pitt News' First Amendment Claim Will

Succeed on the Merits

We now proceed to determine whether The Pitt News has

demonstrated that it is entitled to preliminary injunctive

relief for the indirect economic loss it alleges. In ruling on

a motion for a preliminary injunction, the District Court

must consider the following factors, and issue an injunction

only if all four factors favor preliminary relief: (a) the

likelihood that the plaintiff will prevail on the merits of its

claim at the final hearing; (b) the extent to which the

plaintiff is being irreparably harmed by the conduct

complained of; (c) the extent to which the defendant would

suffer irreparable harm if the preliminary injunction is

issued; and (d) the public interest. See New Jersey Hosp.

Ass'n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995). The

District Court concluded that even if The Pitt News had

standing, the newspaper would not be entitled to a

preliminary injunction because it had not shown

irreparable harm. We agree that The Pitt News is not

entitled to preliminary injunctive relief. We need not reach

the question of irreparable harm, however, because we

conclude that The Pitt News has not shown a likelihood of

success on the merits of its claim.

The Pitt News claims that its First Amendment rights

have been injured by the enforcement of Act 199, even

though Section 4-498(e)(5) can only be enforced against

advertisers. The Pitt News claims that although it cannot be

prosecuted under the Act, the loss of advertising revenue

resulting from the Act's enforcement has reduced the

amount of space it has available to publish articles and

photographs, thereby interfering with its right to freedom of

the press.

17

We disagree. The fact that The Pitt News has

demonstrated a connection between the enforcement of Act

199 and the reduction in its advertising revenues from

purveyors of alcoholic beverages, along with the resulting

reduction in the length of its publication, does not mean

that one of its constitutionally protected interests has been

injured. This amounts to nothing more than an incidental

economic effect of a regulation aimed at closely regulated

third parties. Act 199 does not directly restrict the content

of The Pitt News. 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. Additionally, according to the LCB, The Pitt

News could, for instance, contact area bars,find out what

their nightly drink specials are, and publish a weekly listing

of goings-on about town -- so long as The Pitt News did not

receive any consideration for doing so. There is thus no

direct limitation on the freedom of The Pitt News to publish

alcohol-related information.

The fact that The Pitt News is a newspaper does not give

it a constitutional right to a certain level of profitability, or

even to stay in business at all. The Pitt News "proceeds on

the erroneous premise that it has a constitutional right not

only to speak, but to speak profitably." AMSAT Cable Ltd. v.

Cablevision of Connecticut, 6 F.3d 867, 871 (2d Cir. 1993)

(holding that although content of cable television

transmissions has First Amendment protection, government

regulation that has incidental economic effect of forcing

cable operator out of business does not injure operator's

First Amendment rights). "[E]conomic loss . .. does not

constitute a first amendment injury. `The inquiry for First

Amendment purposes is not concerned with economic

impact; rather, it looks only to the effect of [an] ordinance

upon freedom of expression.' " Warner Cable

Communications, Inc. v. City of Niceville, 911 F.2d 634, 638

(11th Cir. 1990), cert. denied, 501 U.S. 1222, 111 S. Ct.

2839, 115 L. Ed. 2d 1007 (1991) (quoting Young v.

American Mini Theaters, Inc., 427 U.S. 50, 78, 96 S. Ct.

2440, 2456, 49 L. Ed. 2d 310 (1976) (Powell, J.,

concurring)). Thus, although it is true that the enforcement

of Act 199 has had the effect of driving away certain closely

regulated businesses who previously advertised in The Pitt

18

News, this does not in itself amount to a violation of The

Pitt News' First Amendment rights.

In an effort to avoid this reasoning, The Pitt News

advances a "selective tax" argument. It points to a line of

cases holding that it is unconstitutional to impose selective

taxes or other financial burdens on newspapers because of

their content. See, e.g., Arkansas Writers' Project, Inc. v.

Ragland, 481 U.S. 221, 107 S. Ct. 1722, 95 L. Ed. 2d 209

(1987) (placing sales tax on certain publications based on

their content violates First Amendment). Selective tax cases

are distinguishable for two reasons. First, they involve

taxes, not regulations on advertising. Second, they involve

fees levied directly against a newspaper. In the present

case, no taxes or fees have been levied against The Pitt

News. Further, as discussed above, the content of The Pitt

News is not directly regulated or penalized by Act 199.

Therefore, this selective tax argument is unavailing.

Because its constitutional rights have not been infringed,

any economic effect on the advertising revenue of The Pitt

News is therefore incidental to the challenged regulation.

Thus, although The Pitt News has no doubt felt an

economic effect resulting from the enforcement of Act 199,

this does not amount to a violation of its First Amendment

rights.13

_________________________________________________________________

13. We recognize that portions of The Pitt News' complaint can be

construed as asserting an additional right, the newspaper's right to

determine its own advertising content. See Complaint PP. 1, 26, 35, 49.

It is true that newspapers do have a legitimate First Amendment interest

in their advertising content as well as their editorial content, see

Bigelow

v. Virginia, 421 U.S. 809, 825, 95 S. Ct. 2222, 2234, 44 L. Ed. 2d 600

(1975); however, The Pitt News has not demonstrated that Act 199 poses

a concrete threat to that right. Because the LCB has ruled that Act 199

can only be enforced against liquor licensees or manufacturers, Act 199

cannot prevent The Pitt News from publishing information about the

prices and availability of liquor. See A. at 236, 262-64, 290 (Deposition

of Faith S. Diehl, Chief Counsel of the LCB). Therefore, The Pitt News

can claim only that Act 199 poses a threat to the newspaper's ability to

receive compensation for publishing this information, not the

newspaper's ability to publish the information. As we discussed above,

harm to the ability to profit from publication is not a First Amendment

harm.

19

V. CONCLUSION

For the reasons stated above, Appellant, The Pitt News,

has standing to challenge 47 P.S. S 4-498(e)(5) on its own

behalf, but lacks standing to challenge it on behalf of its

former advertisers or its adult readers. We therefore do not

reach the merits of its constitutional challenges regarding

those third parties. As for The Pitt News' own First

Amendment challenge, we conclude that the newspaper has

not shown a likelihood of succeeding on the merits of its

claim that the enforcement of 47 P.S. S 4-498(e)(5) has

violated its right to free speech.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

20