Daily Nebraskan Story Draws Governor's Office Ire; Federal Judge Finds Virginia Alcohol Ad Restrictions Unconstitutional

Daily Nebraskan Clashes with Governor’s Office

Nebraska Governor Dave Heineman’s office considered banning Daily Nebraskan reporters from his press conferences and excluding the student newspaper from a media e-mail list after it revealed in an April 3, 2008 story that a convicted murderer participating in a work-release program is a tour guide at the governor’s mansion.

Officials from the governor’s office arranged for a student reporter from the Daily Nebraskan, the student newspaper at the University of Nebraska-Lincoln, to take a private tour of the governor’s mansion after the newspaper expressed interest in writing a story about the 50-year-old mansion’s March 12, 2008 addition to the National Register of Historic Places.

The Daily Nebraskan instead published a story about Timothy Haverkamp, a tour guide at the mansion, who was convicted of second-degree murder and sentenced to 10 years to life in prison for two cult-related killings in 1985. According to the April 3 front-page story, Haverkamp’s good behavior made him eligible to participate in work-release programs through Nebraska’s Department of Corrections, and he leads tours at the governor’s mansion five days a week, giving detailed explanations of the mansion’s paintings and architectural details to tourists.

According to an April 7 column by Daily Nebraskan Editor Josh Swartzlander, student reporter Rachel Albin initially filed a story about the mansion and the National Register after she and a photographer took the tour. Prior to the tour, Albin’s mother had mentioned to her that several prison inmates worked at the governor’s mansion through a work-release program. Albin later passed the tip on to her editor when they were discussing the story she had written, Swartzlander wrote.

Upon entering the name of the tour guide into the Nebraska Department of Corrections’ online inmates locator, Albin and her editor determined that Haverkamp was a violent offender. After that discovery, Swartzlander wrote, Albin tabled her original story and wrote a new one about the work-release program and Haverkamp’s criminal history.

The governor’s office claimed it had been deceived by the student newspaper, according to an April 7 Omaha World-Herald story. The Daily Nebraskan reported April 4 that a spokeswoman for Gov. Heineman, Ashley Cradduck, informed the student newspaper that it would no longer be allowed to cover the governor’s press conferences at the capitol. She added that security would be called to remove student reporters if they attempted to attend the press conferences.

“We are kind of at a point where we feel we need to cut ties,” Cradduck said, adding, “I wouldn’t say that the story was inaccurate, but I would say some things were taken out of context. It’s not entirely inaccurate, but it’s not the full picture, either.”

The governor’s office reversed its decision to ban Daily Nebraskan reporters from press conferences later in the day on April 4, but the office maintained that it would drop the newspaper from an e-mail list used to send press releases and information to the media. On April 7, according to the Omaha World-Herald, Gov. Heineman told his staff to restore the Daily Nebraskan to the e-mail distribution list as well.

The Daily Nebraskan asserts that the tour was not set up “under false pretences.”

“No one tricked their way into the mansion to try to get a juicy story, and no ethical barriers were breached,” Swartzlander asserted in the April 7 column. “No one at the Daily Nebraskan violated any principles of journalism ethics in reporting the Haverkamp story.”

“[W]hen a convicted murderer who was involved in one of the most heinously brutal crimes in modern Nebraska history is leading tours of the governor’s mansion, that’s news,” Swartzlander wrote. “At the very least, if violent offenders on work-release are allowed to work directly with the public, the public deserves to know.”

Federal Court Strikes Down Virginia Alcohol Advertising Regulations

A federal judge ruled on March 31, 2008 that two Virginia regulations that seek to limit alcohol advertisements, one of which is specifically aimed at college student publications, violate the First Amendment.

In Educational Media Company at Virginia Tech v. Swecker, No. 3:06CV396 (E.D. Va. Mar. 31, 2008), U.S. Magistrate Judge M. Hannah Lauck held that the two state regulations violated the First Amendment because they did not effectively advance the state’s asserted interests of encouraging temperance and fighting underage alcohol consumption. The regulation aimed at college publications was also not narrowly tailored, Lauck ruled, meaning that it infringed on the First Amendment rights of college publications more than necessary to advance the asserted interest.

The American Civil Liberties Union filed a complaint on behalf of the Collegiate Times, Virginia Tech’s student newspaper, and the Cavalier Daily, the University of Virginia’s student newspaper, in May 2006 in the U.S. District Court for the Eastern District of Virginia. Both student newspapers estimated that they had lost approximately $30,000 dollars in advertising revenue in 2006 as a result of the regulations, according to Lauck’s opinion.

“We’re obviously pleased with the outcome because we saw that this severely threatened our advertising revenues,” said Amie Steele, Collegiate Times editor-in-chief, according to an April 2, 2008 Cavalier Daily story. “And on an editorial side we … felt like this hindered our freedom of speech and freedom of the press.”

The plaintiffs challenged two state regulations. The first was 3 Va. Admin. Code 5-20-40(A), which limits alcohol advertising published in print and electronic media to the use of specific enumerated phrases such as “Mixed Drinks,” “Cocktail Lounges,” and “Polynesian Drinks.” The regulation bans use of the phrase “Happy Hour” in advertisements. It also prohibits use of the words “Speakeasy” or “Bar” in an advertisement unless the words are used in combination with other words that “connote a restaurant” or are part of a liquor licensee’s trade name.

The second regulation challenged by the plaintiffs, 3 Va. Admin. Code 5-20-40(B)(3), prohibits advertisements of beer, wine, and mixed beverages in college student publications, defined as publications prepared by college students distributed primarily to individuals under 21 years of age. The regulation permits alcohol advertisements by dining establishments in college publications, but the advertisements must use only words designated in the statute, including the words “beer” and “mixed beverages.” The ads cannot specify prices or brands.

Defendants, the Alcoholic Beverage Control Board of Virginia (ABC), asserted that the reduction of underage drinking and over-consumption of alcohol on college campuses was a substantial interest justifying the infringement on the First Amendment rights of the student newspapers posed by 3 Va. Admin. Code 5-20-40(B)(3).

Lauck analyzed the regulations using the framework established by the Supreme Court in Central Hudson Gas & Electric Corporation v. Public Service Commission, 447 U.S. 557 (1980) for commercial speech, which is defined as speech that does no more than propose a commercial transaction. Under the Central Hudson analysis, a court must first determine whether the expression is lawful and not misleading and therefore is protected by the First Amendment. The court must then determine whether the regulation at issue directly advances a substantial government interest, and then finally determine whether the regulation is narrowly tailored to advance the asserted government interest.

With respect to the first challenged regulation, 3 Va. Admin. Code 5-20-40(A), Lauck determined that the state presented no evidence that permitting the use of only generic phrases like “Mixed Drinks” directly advanced the state’s asserted goal of “encourag[ing] temperance.” In addition, the court stated that happy hours and similar events could be advertised on the radio or television, thus counteracting the potential impact of a ban that only extended to print and electronic media.

With respect to the second challenged regulation, 3 Va. Admin. Code 5-20-40(B)(3), the court acknowledged that underage drinking is a significant problem on college campuses, and applauded the state’s efforts to address it. However, the state presented no evidence that the regulation directly contributed to temperance among students, the court said.

“[N]ot a single witness testifies as to how this regulation, which has been in effect for decades, has directly advanced the admittedly substantial governmental interest of preventing underage consumption of alcohol or abusive drinking,” Lauck wrote.

The regulation also is not narrowly tailored, Lauck wrote. It is overinclusive because it prohibits adult readers who also read the Collegiate Times and Cavalier Daily from receiving alcohol advertising. Both student newspapers had demonstrated that at least 50 percent of their audience was of legal age to purchase and consume alcohol. Neither the rationale for permitting some words in advertisements and excluding others, nor the rationale for allowing advertisements associated with dining establishments was fully explained, Lauck wrote.

Although this case raised an issue of first impression in the 4th Circuit, Lauck cited an opinion authored by then-Circuit Judge Samuel Alito for the 3rd Circuit U.S. Court of Appeals on a similar issue. In The Pitt News v. Pappert, 379 F.3d 96 (3d Cir. 2004), the 3rd Circuit struck down a Pennsylvania statute banning alcohol advertising in educational institution publications. Judge Alito wrote in his opinion, “[T]he law applies to ads that concern lawful activity (the lawful sale of alcoholic beverages) and that are not misleading, and we see no other ground on which it could be argued that the covered ads are outside the protection of the First Amendment.” (For more on the case see “Pitt News Can Run Alcohol Ads” in the Summer 2004 Silha Bulletin. For more on Justice Alito’s views on the First Amendment, see “New Justice Alito Addresses the Importance of the First Amendment at Confirmation Hearings” in the Winter 2006 issue.)

Lauck granted summary judgment for the plaintiffs and granted an injunction against the regulations.

– Amba Datta
Silha Research Assistant



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This page contains a single entry by cla published on October 14, 2009 2:29 PM.

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