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.
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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
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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
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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.
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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
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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.
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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
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