I was recently asked to respond to a public relations legal case. The case read as follows:
“You are the public relations director for a small liberal arts university. Recently there have been some fights in campus dorms involving drunk students. The university is concerned about the number of students who are drinking and how their behavior is affecting the school’s image. The university wants to ask the city council to pass an ordinance [a law passed by a municipal government] prohibiting the use of a billboard on the edge of campus to advertise local drinking establishments. In other words, the ordinance would ban the advertising of bars on billboards. How might you advise the school’s president about the legal status of such an ordinance?”
I would advise the school’s president that pursuing that sort of legal action to combat advertising for bars downtown would not be a wise decision. In the legal action the bars would most likely bring against the city or university, the Central Hudson test would most likely be employed to determine whether or not the commercial speech in question is worthy of protection. I believe the commercial speech would pass the Central Hudson test.
The Supreme Court has held since at least 1975 in Bigelow v. Virginia that because speech is not precluded from First Amendment protection simply because it is printed in the form of an advertisement. Furthermore, the very next year the Court ruled on Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, setting the precedent that “commercial speech can be as important to people as political speech, especially in terms of their everyday lives [and] emphasiz[ing] the right of the consumer to have access to information,” (Gower, 36).
The speech in question advertising bars downtown is within both the business’ and consumer’s right to display and receive, respectively. Also, thanks to the precedent set with 44 Liquormart v. Rhode Island, the fact that the bars are advertising alcohol does not preclude the speech from protection. The advertisements are also accurately advertising lawful activities. The speech, therefore, is commercial speech worthy of protection.
The city government would have to somehow prove limiting the advertising rights of the bars would serve a substantial government interest. It would be difficult to prove on-campus fighting is completely and unquestionably linked to drinking. Also, since this is a small, liberal arts college located presumably on private property, it could be argued that is more of a university interest than a government interest. The Court would most likely say that on-campus fighting is not a good enough reason for the government to infringe upon speech rights.
There is also no proof of any kind to indicate that a lack of bar advertising on billboards would reduce the occurrence of drunken fights or drunken students on campus. If we examine Kent State, for instance, there is no billboard advertising of any bars downtown in or around the main campus proper. Yet, all students are well aware of the bars and the services they offer. There are most likely alcohol-related disturbances that take place as well. Therefore, it cannot be conclusively proven that the speech is the problem. It is perhaps the substance but that is an entirely different matter. Even if a court were to rule that reducing on-campus, alcohol-related fights was a substantial government interest, the court would surely hold that restricting bar advertising rights does not advance the government interest.
Certainly, considering the fourth element of the Central Hudson test also puts a nail in the coffin, so to speak, of the university’s case. The proposed regulation goes farther than necessary to advance the alleged “government interest” because the school can easily take measures on its own to prevent on-campus fighting, such as increased residence hall security, increased city police presence on campus, severe disciplinary measures, etcetera. There are far better ways to ensure on-campus discipline and order than by putting the responsibility on the backs of local businesses.
Furthermore, going beyond a purely legal perspective, the university going after the advertising of local businesses to an area where a target audience spends a good portion of their time would be a PR nightmare. First, the bars and citizens could interpret that as the university being completely unsupportive and unsympathetic to local business interests. Also, if students are trying to decide whether or not to attend school there, attending a school with a strong, anti-alcohol stance for whatever reason could very well be an immediate turn-off to students making their college decision.
I would advise the president that the best, and probably most cost-effective, way to combat a message he does not like is to put out a message with a counterpoint. I would recommend the university rent the billboards closest to school and display anti-drinking messages. That way, a messy legal proceeding is avoided and the university president can still say he is “doing his part” in combating drinking at the school.
What would your recommendation be?