U.S. Supreme Court
BIGELOW v. VIRGINIA, 421 U.S. 809 (1975)
421 U.S. 809
BIGELOW v. VIRGINIA.
APPEAL FROM THE SUPREME COURT OF VIRGINIA.
No. 73-1309.
Argued December 18, 1974.
Decided June 16, 1975.
Appellant, the managing editor of a weekly newspaper published in Virginia, as the
result of publishing a New York City organization's advertisement announcing that it would
arrange low-cost placements for women with unwanted pregnancies in accredited hospitals
and clinics in New York (where abortions were legal and there were no residency
requirements), was convicted of violating a Virginia statute making it a misdemeanor, by
the sale or circulation of any publication, to encourage or prompt the processing of an
abortion. The trial court had rejected appellant's claim that the statute was
unconstitutional under the First Amendment as made applicable to the States by the
Fourteenth as being facially overbroad and as applied to appellant. The Virginia Supreme
Court affirmed the conviction, also rejecting appellant's First Amendment claim and
holding that the advertisement was a commercial one which could be constitutionally
prohibited under the State's police power, and that because appellant himself lacked a
legitimate First Amendment interest inasmuch as his activity "was of a purely
commercial nature," he had no standing to challenge the statute as being facially
overbroad. Held:
- 1. Though an intervening amendment of the statute as a practical matter moots the
overbreadth issue for the future, the Virginia courts erred in denying appellant standing
to raise that issue since "pure speech" rather than conduct was involved and no
consideration was given to whether or not the alleged overbreadth was substantial. Pp.
815-818.
- 2. The statute as applied to appellant infringed constitutionally protected speech under
the First Amendment. Pp. 818-829.
- (a) The Virginia courts erred in assuming that advertising, as such, was entitled to no
First Amendment protection and that appellant had no legitimate First Amendment interest,
since speech is not stripped of First Amendment protection merely because it appears in
the form of a paid commercial advertisement, and the fact that the advertisement in
question had commercial [421 U.S. 809, 810]
aspects or reflected the advertiser's commercial interests did not negate all First
Amendment guarantees. Pp. 818-821.
- (b) Viewed in its entirety, the advertisement conveyed information of potential interest
and value to a diverse audience consisting of not only readers possibly in need of the
services offered, but also those concerned with the subject matter or the law of another
State, and readers seeking reform in Virginia; and thus appellant's First Amendment
interests coincided with the constitutional interests of the general public. Pp. 821-822.
- (c) A State does not acquire power or supervision over another State's internal affairs
merely because its own citizens' welfare and health may be affected when they travel to
the other State, and while a State may seek to disseminate information so as to enable its
citizens to make better informed decisions when they leave, it may not, under the guise of
exercising internal police powers, bar a citizen of another State from disseminating
information about an activity that is legal in that State, as the placement services here
were at the time they were advertised. Pp. 822-825.
- (d) Virginia's asserted interest in regulating what Virginians may hear or read about
the New York services or in shielding its citizens from information about activities
outside Virginia's borders (which Virginia's police powers do not reach) is entitled to
little, if any, weight under the circumstances. Pp. 826-828.
214 Va. 341, 200 S. E. 2d 680, reversed.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS,
BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting
opinion, in which WHITE, J., joined, post, p. 829.
Melvin L. Wulf and John C. Lowe argued the cause for appellant. With them on the brief
were Joel M. Gora, Judith Mears, and F. Guthrie Gordon III.
D. Patrick Lacy, Jr., Assistant Attorney General of Virginia, argued the cause for
appellee. With him on the brief were Andrew P. Miller, Attorney General, [421 U.S. 809, 811] Anthony F. Troy, Deputy Attorney
General, and Paul L. Gergoudis, Assistant Attorney General.*
[Footnote *] Raymond T. Bonner and
Alan B. Morrison filed a brief for Public Citizen et al. as amici curiae urging reversal.
Michael M. Kearney filed a brief for Virginia Right to Life, Inc., as amicus curiae urging
affirmance.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
An advertisement carried in appellant's newspaper led to his conviction for a violation
of a Virginia statute that made it a misdemeanor, by the sale or circulation of any
publication, to encourage or prompt the procuring of an abortion. The issue here is
whether the editor-appellant's First Amendment rights were unconstitutionally abridged by
the statute. The First Amendment, of course, is applicable to the States through the
Fourteenth Amendment. Schneider v. State, 308 U.S.
147, 160 (1939).
I
The Virginia Weekly was a newspaper published by the Virginia Weekly Associates of
Charlottesville. It was issued in that city and circulated in Albemarle County, with
particular focus on the campus of the University of Virginia. Appellant, Jeffrey C.
Bigelow, was a director and the managing editor and responsible officer of the newspaper.1
On February 8, 1971, the Weekly's Vol. V, No. 6, was published and circulated under the
direct responsibility [421 U.S. 809, 812]
of the appellant. On page 2 of that issue was the following advertisement:
- "UNWANTED PREGNANCY LET US HELP YOU Abortions are now legal in New York. There are
no residency requirements. FOR IMMEDIATE PLACEMENT IN ACCREDITED HOSPITALS AND CLINICS AT
LOW COST
- Contact WOMEN'S PAVILION 515 Madison Avenue New York, N. Y. 10022 or call any time (212)
371-6670 or (212) 371-6650 AVAILABLE 7 DAYS A WEEK STRICTLY CONFIDENTIAL. We will make all
arrangements for you and help you with information and counseling."
It is to be observed that the advertisement announced that the Women's Pavilion of New
York City would help women with unwanted pregnancies to obtain "immediate placement
in accredited hospitals and clinics at low cost" and would "make all
arrangements" on a "strictly confidential" basis; that it offered
"information and counseling"; that it gave the organization's address and
telephone numbers; and that it stated that abortions "are now legal in New York"
and there "are no residency requirements." Although the advertisement did not
contain the name of any licensed physician, the "placement" to which it referred
was to "accredited hospitals and clinics."
On May 13 Bigelow was charged with violating Va. Code Ann. 18.1-63 (1960). The statute
at that time read:
- "If any person, by publication, lecture, advertisement, or by the sale or
circulation of any publication, or in any other manner, encourage or prompt [421 U.S. 809, 813] the procuring of abortion or
miscarriage, he shall be guilty of a misdemeanor."2
Shortly after the statute was utilized in Bigelow's case, and apparently before it was
ever used again, the Virginia Legislature amended it and changed its prior application and
scope.3
Appellant was first tried and convicted in the County Court of Albemarle County. He
appealed to the Circuit Court of that county where he was entitled to a de novo trial. Va.
Code Ann. 16.1-132 and 16.1-136 (1960). In the Circuit Court he waived a jury and in July
1971 [421 U.S. 809, 814] was tried
to the judge. The evidence consisted of stipulated facts; an excerpt, containing the
advertisement in question, from the Weekly's issue of February 8, 1971; and the June 1971
issue of Redbook magazine, containing abortion information and distributed in Virginia and
in Albemarle County. App. 3, 8. The court rejected appellant's claim that the statute was
unconstitutional and adjudged him guilty. He was sentenced to pay a fine of $500, with
$350 thereof suspended "conditioned upon no further violation" of the statute.
Id., at 5.
The Supreme Court of Virginia granted review and, by a 4-2 vote, affirmed Bigelow's
conviction. 213 Va. 191, 191 S. E. 2d 173 (1972). The court first rejected the appellant's
claim that the advertisement was purely informational and thus was not within the
"encourage or prompt" language of the statute. It held, instead, that the
advertisement "clearly exceeded an informational status" and "constituted
an active offer to perform a service, rather than a passive statement of fact." Id.,
at 193, 191 S. E. 2d, at 174. It then rejected Bigelow's First Amendment claim. This, the
court said, was a "commercial advertisement" and, as such, "may be
constitutionally prohibited by the state," particularly "where, as here, the
advertising relates to the medical-health field." Id., at 193-195, 191 S. E. 2d, at
174-176. The issue, in the court's view, was whether the statute was a valid exercise of
the State's police power. It answered this question in the affirmative, noting that the
statute's goal was "to ensure that pregnant women in Virginia who decided to have
abortions come to their decisions without the commercial advertising pressure usually
incidental to the sale of a box of soap powder." Id., at 196, 191 S. E. 2d, at 176.
The court then turned to Bigelow's claim of overbreadth. It held that because the [421 U.S. 809, 815] appellant himself
lacked a legitimate First Amendment interest, inasmuch as his activity "was of a
purely commercial nature," he had no "standing to rely upon the hypothetical
rights of those in the non-commercial zone." Id., at 198, 191 S. E. 2d, at 177-178.
Bigelow took a timely appeal to this Court. During the pendency of his appeal, Roe v.
Wade, 410
U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179
(1973), were decided. We subsequently vacated Bigelow's judgment of conviction and
remanded the case for further consideration in the light of Roe and Doe. 413 U.S. 909
(1973).4
The Supreme Court of Virginia, on such reconsideration, but without further oral
argument, again affirmed appellant's conviction, observing that neither Roe nor Doe
"mentioned the subject of abortion advertising" and finding nothing in those
decisions "which in any way affects our earlier view."5 214 Va. 341, 342, 200 S. E. 2d 680
(1973). Once again, Bigelow appealed. We noted probable jurisdiction in order to review
the important First Amendment issue presented. 418 U.S. 909
(1974).
II
This Court often has recognized that a defendant's standing to challenge a statute on
First Amendment grounds as facially overbroad does not depend upon whether his own
activity is shown to be constitutionally privileged. The Court consistently has permitted
"attacks on overly broad statutes with no requirement that the person making the
attack demonstrate that his own [421 U.S.
809, 816] conduct could not be regulated by a statute drawn with the requisite
narrow specificity." Dombrowski v. Pfister, 380 U.S.
479, 486 (1965). See also Grayned v. City of Rockford, 408 U.S.
104, 114 (1972); Gooding v. Wilson, 405 U.S.
518, 520-521 (1972); Coates v. City of Cincinnati, 402 U.S.
611, 616 (1971), and id., at 619-620 (WHITE, J., dissenting); NAACP v. Button, 371 U.S.
415, 432 (1963); Thornhill v. Alabama, 310 U.S.
88, 97-98 (1940). The Supreme Court of Virginia itself recognized this principle when
it recently stated that "persons who engage in non-privileged conduct are not
precluded from attacking a statute under which they were convicted." Owens v.
Commonwealth, 211 Va. 633, 638-639, 179 S. E. 2d 477, 481 (1971). "For in appraising
a statute's inhibitory effect upon [First Amendment] rights, this Court has not hesitated
to take into account possible applications of the statute in other factual contexts
besides that at bar." NAACP v. Button, 371
U.S., at 432. See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.
L. Rev. 844, 847-848 (1970).
This "exception to the usual rules governing standing," Dombrowski v.
Pfister, 380
U.S., at 486, reflects the transcendent value to all society of constitutionally
protected expression. We give a defendant standing to challenge a statute on grounds that
it is facially overbroad, regardless of whether his own conduct could be regulated by a
more narrowly drawn statute, because of the "danger of tolerating, in the area of
First Amendment freedoms, the existence of a penal statute susceptible of sweeping and
improper application." NAACP v. Button, 371
U.S., at 433.
Of course, in order to have standing, an individual must present more than
"[a]llegations of a subjective `chill.'" There must be a "claim of specific
present objective [421 U.S. 809, 817]
harm or a threat of specific future harm." Laird v. Tatum, 408 U.S. 1,
13-14 (1972). That requirement, however, surely is met under the circumstances of this
case, where the threat of prosecution already has blossomed into the reality of a
conviction, and where there can be no doubt concerning the appellant's personal stake in
the outcome of the controversy. See Baker v. Carr, 369 U.S.
186, 204 (1962). The injury of which appellant complains is one to him as an editor
and publisher of a newspaper; he is not seeking to raise the hypothetical rights of
others. See Moose Lodge No. 107 v. Irvis, 407 U.S.
163, 166 (1972); Breard v. Alexandria, 341 U.S.
622, 641 (1951). Indeed, unlike some cases in which the standing issue similarly has
been raised, the facts of this case well illustrate "the statute's potential for
sweeping and improper applications." Gooding v. Wilson, 405
U.S., at 532-533 (BURGER, C. J., dissenting).
Declaring a statute facially unconstitutional because of overbreadth "is,
manifestly, strong medicine," and "has been employed by the Court sparingly and
only as a last resort." Broadrick v. Oklahoma, 413 U.S.
601, 613 (1973). But we conclude that the Virginia courts erred in denying Bigelow
standing to make this claim, where "pure speech" rather than conduct was
involved, without any consideration of whether the alleged overbreadth was or was not
substantial. Id., at 615, 616. The Supreme Court of Virginia placed no effective limiting
construction on the statute. Indeed, it characterized the rights of doctors, husbands, and
lecturers as "hypothetical," and thus seemed to imply that, although these were
in the noncommercial zone, the statute might apply to them, too.
In view of the statute's amendment since Bigelow's conviction in such a way as
"effectively to repeal" its prior application, there is no possibility now that
the [421 U.S. 809, 818] statute's
pre-1972 form will be applied again to appellant or will chill the rights of others. As a
practical matter, the issue of its overbreadth has become moot for the future. We
therefore decline to rest our decision on overbreadth and we pass on to the further
inquiry, of greater moment not only for Bigelow but for others, whether the statute as
applied to appellant infringed constitutionally protected speech.
III
A. The central assumption made by the Supreme Court of Virginia was that the First
Amendment guarantees of speech and press are inapplicable to paid commercial
advertisements. Our cases, however, clearly establish that speech is not stripped of First
Amendment protection merely because it appears in that form. Pittsburgh Press Co. v. Human
Rel. Comm'n, 413 U.S.
376, 384 (1973); New York Times Co. v. Sullivan, 376 U.S.
254, 266 (1964).
The fact that the particular advertisement in appellant's newspaper had commercial
aspects or reflected the advertiser's commercial interests did not negate all First
Amendment guarantees. The State was not free of constitutional restraint merely because
the advertisement involved sales or "solicitations," Murdock v. Pennsylvania,
319 U.S.
105, 110-111 (1943), or because appellant was paid for printing it, New York Times Co.
v. Sullivan, 376
U.S., at 266; Smith v. California, 361 U.S.
147, 150 (1959), or because appellant's motive or the motive of the advertiser may
have involved financial gain, Thomas v. Collins, 323 U.S.
516, 531 (1945). The existence of "commercial activity, in itself, is no
justification for narrowing the protection of expression secured by the First
Amendment." Ginzburg v. United States, 383 U.S.
463, 474 (1966). [421 U.S. 809, 819]
Although other categories of speech - such as fighting words, Chaplinsky v. New
Hampshire, 315 U.S.
568, 572 (1942), or obscenity, Roth v. United States, 354 U.S.
476, 481-485 (1957), Miller v. California, 413 U.S.
15, 23 (1973), or libel, Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974), or incitement, Brandenburg v. Ohio, 395 U.S. 444
(1969) - have been held unprotected, no contention has been made that the particular
speech embraced in the advertisement in question is within any of these categories.
The appellee, as did the Supreme Court of Virginia, relies on Valentine v.
Chrestensen, 316 U.S. 52
(1942), where a unanimous Court, in a brief opinion, sustained an ordinance which had been
interpreted to ban the distribution of a handbill advertising the exhibition of a
submarine. The handbill solicited customers to tour the ship for a fee. The
promoter-advertiser had first attempted to distribute a single-faced handbill consisting
only of the advertisement, and was denied permission to do so. He then had printed, on the
reverse side of the handbill, a protest against official conduct refusing him the use of
wharfage facilities. The Court found that the message of asserted "public
interest" was appended solely for the purpose of evading the ordinance and therefore
did not constitute an "exercise of the freedom of communicating information and
disseminating opinion." Id., at 54. It said:
- "We are equally clear that the Constitution imposes no such restraint on government
as respects purely commercial advertising." Ibid.
But the holding is distinctly a limited one: the ordinance was upheld as a reasonable
regulation of the manner in which commercial advertising could be distributed. The fact
that it had the effect of banning a particular handbill does not mean that Chrestensen is [421 U.S. 809, 820] authority for the
proposition that all statutes regulating commercial advertising are immune from
constitutional challenge. The case obviously does not support any sweeping proposition
that advertising is unprotected per se.6
This Court's cases decided since Chrestensen clearly demonstrate as untenable any
reading of that case that would give it so broad an effect. In New York Times Co. v.
Sullivan, supra, a city official instituted a civil libel action against four clergymen
and the New York Times. The suit was based on an advertisement carried in the newspaper
criticizing police action against members of the civil rights movement and soliciting
contributions for the movement. The Court held that this advertisement, although
containing factually erroneous defamatory content, was entitled to the same degree of
constitutional protection as ordinary speech. It said:
- "That the Times was paid for publishing the advertisement is as immaterial in this
connection as is the fact that newspapers and books are sold." 376
U.S., at 266.
Chrestensen was distinguished on the ground that the handbill advertisement there did
no more than propose [421 U.S. 809, 821]
a purely commercial transaction, whereas the one in New York Times
- "communicated information, expressed opinion, recited grievances, protested claimed
abuses, and sought financial support on behalf of a movement whose existence and
objectives are matters of the highest public interest and concern." Ibid.
The principle that commercial advertising enjoys a degree of First Amendment protection
was reaffirmed in Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.S. 376
(1973). There, the Court, although divided, sustained an ordinance that had been construed
to forbid newspapers to carry help-wanted advertisements in sex-designated columns except
where based upon a bona fide occupational exemption. The Court did describe the
advertisements at issue as "classic examples of commercial speech," for each was
"no more than a proposal of possible employment." Id., at 385. But the Court
indicated that the advertisements would have received some degree of First Amendment
protection if the commercial proposal had been legal. The illegality of the advertised
activity was particularly stressed:
- "Any First Amendment interest which might be served by advertising an ordinary
commercial proposal and which might arguably outweigh the governmental interest supporting
the regulation is altogether absent when the commercial activity itself is illegal and the
restriction on advertising is incidental to a valid limitation on economic activity."
Id., at 389.
B. The legitimacy of appellant's First Amendment claim in the present case is
demonstrated by the important differences between the advertisement presently at [421 U.S. 809, 822] issue and those
involved in Chrestensen and in Pittsburgh Press. The advertisement published in
appellant's newspaper did more than simply propose a commercial transaction. It contained
factual material of clear "public interest." Portions of its message, most
prominently the lines, "Abortions are now legal in New York. There are no residency
requirements," involve the exercise of the freedom of communicating information and
disseminating opinion.
Viewed in its entirety, the advertisement conveyed information of potential interest
and value to a diverse audience - not only to readers possibly in need of the services
offered, but also to those with a general curiosity about, or genuine interest in, the
subject matter or the law of another State and its development, and to readers seeking
reform in Virginia. The mere existence of the Women's Pavilion in New York City, with the
possibility of its being typical of other organizations there, and the availability of the
services offered, were not unnewsworthy. Also, the activity advertised pertained to
constitutional interests. See Roe v. Wade, 410 U.S. 113
(1973), and Doe v. Bolton, 410 U.S. 179
(1973). Thus, in this case, appellant's First Amendment interests coincided with the
constitutional interests of the general public.7
Moreover, the placement services advertised in appellant's newspaper were legally
provided in New York at that time.8
The Virginia Legislature could not have [421
U.S. 809, 823] regulated the advertiser's activity in New York, and obviously
could not have proscribed the activity in that State.9 Huntington v. Attrill, 146 U.S. 657, 669
(1892). [421 U.S. 809, 824]
Neither could Virginia prevent its residents from traveling to New York to obtain those
services or, as the State conceded, Tr. of Oral Arg. 29, prosecute them for going there.
See United States v. Guest, 383 U.S.
745, 757-759 (1966); Shapiro v. Thompson, 394 U.S.
618, 629-631 (1969); Doe v. Bolton, 410
U.S., at 200. Virginia possessed no authority to regulate the services provided in New
York - the skills and credentials of the New York physicians and of the New York
professionals who assisted them, the standards of the New York hospitals and clinics to
which patients were referred, or the practices and charges of the New York referral
services.
A State does not acquire power or supervision over the internal affairs of another
State merely because the welfare and health of its own citizens may be affected when they
travel to that State. It may seek to disseminate information so as to enable its citizens
to make better informed decisions when they leave. But it may not, under the guise of
exercising internal police powers, bar [421
U.S. 809, 825] a citizen of another State from disseminating information about
an activity that is legal in that State.
C. We conclude, therefore, that the Virginia courts erred in their assumptions that
advertising, as such, was entitled to no First Amendment protection and that appellant
Bigelow had no legitimate First Amendment interest. We need not decide in this case the
precise extent to which the First Amendment permits regulation of advertising that is
related to activities the State may legitimately regulate or even prohibit.10 [421 U.S. 809, 826]
Advertising, like all public expression, may be subject to reasonable regulation that
serves a legitimate public interest. See Pittsburgh Press Co. v. Human Rel. Comm'n, supra;
Lehman v. City of Shaker Heights, 418 U.S. 298
(1974).11 To the extent that
commercial activity is subject to regulation, the relationship of speech to that activity
may be one factor, among others, to be considered in weighing the First Amendment interest
against the governmental interest alleged. Advertising is not thereby stripped of all
First Amendment protection. The relationship of speech to the marketplace of products or
of services does not make it valueless in the marketplace of ideas.
The Court has stated that "a State cannot foreclose the exercise of constitutional
rights by mere labels." NAACP v. Button, 371
U.S., at 429. Regardless of the particular label asserted by the State - whether it
calls speech "commercial" or "commercial advertising" or
"solicitation" - a court may not escape the task of assessing the First
Amendment interest at stake and weighing it against the public interest allegedly served
by the regulation. The diverse motives, means, and messages of advertising may make speech
"commercial" in widely varying degrees. We need not decide here the extent to
which constitutional protection is afforded commercial advertising under all circumstances
and in the face of all kinds of regulation.
IV
The task of balancing the interests at stake here was one that should have been
undertaken by the Virginia courts before they reached their decision. We need not [421 U.S. 809, 827] remand for that
purpose, however, because the outcome is readily apparent from what has been said above.
In support of the statute, the appellee contends that the commercial operations of
abortion referral agencies are associated with practices, such as fee splitting, that tend
to diminish, or at least adversely affect, the quality of medical care, and that
advertising of these operations will lead women to seek services from those who are
interested only or mainly in financial gain apart from professional integrity and
responsibility.
The State, of course, has a legitimate interest in maintaining the quality of medical
care provided within its borders. Barsky v. Board of Regents, 347 U.S.
442, 451 (1954). No claim has been made, however, that this particular advertisement
in any way affected the quality of medical services within Virginia. As applied to
Bigelow's case, the statute was directed at the publishing of informative material
relating to services offered in another State and was not directed at advertising by a
referral agency or a practitioner whose activity Virginia had authority or power to
regulate.
To be sure, the agency-advertiser's practices, although not then illegal, may later
have proved to be at least "inimical to the public interest" in New York. S. P.
S. Consultants, Inc. v. Lefkowitz, 333 F. Supp. 1373, 1378 (SDNY 1971).12 But this development would not
justify a Virginia statute that forbids Virginians from using in New York the then legal
services of a local New York agency. Here, Virginia is really asserting an interest in
regulating what Virginians may hear or read about the New York services. It is, in effect,
advancing an interest in shielding its citizens from information about activities [421 U.S. 809, 828] outside
Virginia's borders, activities that Virginia's police powers do not reach. This asserted
interest, even if understandable, was entitled to little, if any, weight under the
circumstances.
No claim has been made, nor could any be supported on this record, that the
advertisement was deceptive or fraudulent,13 or that it related to a commodity or service that was then illegal in
either Virginia or in New York, or that it otherwise furthered a criminal scheme in
Virginia.14 There was no possibility
that appellant's activity would invade the privacy of other citizens, Breard v.
Alexandria, supra, or infringe on other rights. Observers would not have the advertiser's
message thrust upon them as a captive audience. Lehman v. City of Shaker Heights, supra;
Packer Corp. v. Utah, 285
U.S. 105, 110 (1932).
The strength of appellant's interest was augmented by the fact that the statute was
applied against him as publisher and editor of a newspaper, not against the advertiser or
a referral agency or a practitioner. The prosecution thus incurred more serious First
Amendment overtones.
If application of this statute were upheld under these circumstances, Virginia might
exert the power sought here over a wide variety of national publications or interstate
newspapers carrying advertisements similar to the one that appeared in Bigelow's newspaper
or containing articles on the general subject matter to which [421 U.S. 809, 829] the advertisement referred.15 Other States might do the same. The
burdens thereby imposed on publications would impair, perhaps severely, their proper
functioning. See Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241, 257-258 (1974). We know from experience that "liberty of the press is in
peril as soon as the government tries to compel what is to go into a newspaper." 2 Z.
Chafee, Government and Mass Communications 633 (1947). The policy of the First Amendment
favors dissemination of information and opinion, and "[t]he guarantees of freedom of
speech and press were not designed to prevent `the censorship of the press merely, but any
action of the government by means of which it might prevent such free and general
discussion of public matters as seems absolutely essential . . . .' 2 Cooley,
Constitutional Limitations 886 (8th ed.)." Curtis Publishing Co. v. Butts, 388 U.S.
130, 150 (1967) (opinion of Harlan, J.).
We conclude that Virginia could not apply Va. Code Ann. 18.1-63 (1960), as it read in
1971, to appellant's publication of the advertisement in question without
unconstitutionally infringing upon his First Amendment rights. The judgment of the Supreme
Court of Virginia is therefore reversed.
Footnotes
[Footnote 1] His brief describes
the publication as an "underground newspaper." Brief for Appellant 3. The
appellee states that there is no evidence in the record to support that description. Brief
for Appellee 3 n. 1.
[Footnote 2] We were advised by the
State at oral argument that the statute dated back to 1878, and that Bigelow's was the
first prosecution under the statute "in modern times," and perhaps the only
prosecution under it "at any time." Tr. of Oral Arg. 40. The statute appears to
have its origin in Va. Acts of Assembly 1877-1878, p. 281, c. 2, 8.
[Footnote 3] The statute, as
amended by Va. Acts of Assembly 1972, c. 725, now reads: "18.1-63. If any person, by
publication, lecture, advertisement, or by the sale or circulation of any publication, or
through the use of a referral agency for profit, or in any other manner, encourage or
promote the processing of an abortion or miscarriage to be performed in this State which
is prohibited under this article, he shall be guilty of a misdemeanor." It is to be
observed that the amendment restricts the statute's application, with respect to
advertising, to an abortion illegal in Virginia and to be performed there. Since the
State's statutes purport to define those abortions that are legal when performed in the
State, see Va. Code Ann. 18.1-62.1 and 18.1-62.3 (Supp. 1975), the State at oral argument
described the pre-1972 form of 18.1-63 as "effectively repealed by amendment,"
and, citing Roe v. Wade, 410 U.S. 113
(1973), and Doe v. Bolton, 410 U.S. 179
(1973), the statute, as amended, as limited to an abortion performed by a nonphysician.
Tr. of Oral Arg. 38-39. In any event, there is no dispute here that the amended statute
would not reach appellant's advertisement.
[Footnote 4] See Note, The First
Amendment and Commercial Advertising: Bigelow v. Commonwealth, 60 Va. L. Rev. 154 (1974).
[Footnote 5] Virginia asserts,
rightfully we feel, that this is "a First Amendment case" and "not an
abortion case." Brief for Appellee 15 n. 6; Tr. of Oral Arg. 26.
[Footnote 6] MR. JUSTICE DOUGLAS,
who was a Member of the Court when Chrestensen was decided and who joined that opinion,
has observed: "The ruling was casual, almost offhand. And it has not survived
reflection." Cammarano v. United States, 358 U.S.
498, 514 (1959) (concurring opinion). MR. JUSTICE BRENNAN, joined by JUSTICES STEWART,
MARSHALL, and POWELL, has observed: "There is some doubt concerning whether the
`commercial speech' distinction announced in Valentine v. Chrestensen . . . retains
continuing validity." Lehman v. City of Shaker Heights, 418 U.S.
298, 314 n. 6 (1974) (dissenting opinion). See also Pittsburgh Press Co. v. Human
Rel. Comm'n, 413 U.S.
376, 393 (1973) (BURGER, C. J., dissenting); id., at 398 (DOUGLAS, J., dissenting);
id., at 401 (STEWART, J., dissenting).
[Footnote 7] It was argued, too,
that under the circumstances the appearance of the advertisement in the appellant's
newspaper was "an implicit editorial endorsement" of its message. Brief for
Appellant 29.
[Footnote 8] Subsequent to
Bigelow's publication of the advertisement in February 1971, New York adopted Laws 1971,
c. 725, effective July 1, 1971, amended by Laws 1972, c. 17, 1, now codified as Art. [421 U.S. 809, 823] 45 of the State's
Public Health Law (Supp. 1974-1975). Section 4500 contains a legislative finding:
"Medical referral services, organized as profit making enterprises within this state,
have been . . . in violation of the standards of ethics and public policy applicable to
the practice of medicine and which would be violations of standards of professional
conduct if the acts were performed by physicians. . . . It is hereby declared to be the
public policy of this state . . . that such profit making medical referral service
organizations be declared to be invalid and unlawful in this state." Section 4501 (1)
provides: "No person, firm, partnership, association or corporation, or agent or
employee thereof, shall engage in for profit any business or service which in whole or in
part includes the referral or recommendation of persons to a physician, hospital, health
related facility, or dispensary for any form of medical care or treatment of any ailment
or physical condition. The imposition of a fee or charge for any such referral or
recommendation shall create a presumption that the business or service is engaged in for
profit." A violation of the statute is a misdemeanor punishable by imprisonment for
not longer than one year or a fine of not more than $5,000 or both. 4502 (1). Article 45
expressly is made inapplicable to a nonprofit corporation exempt from federal income
taxation under 501 (c) of the Internal Revenue Code of 1954, 26 U.S.C. 501 (c). 4503. The
1971 statute has been upheld against constitutional challenge. S. P. S. Consultants, Inc.
v. Lefkowitz, 333 F. Supp. 1373 (SDNY 1971).
[Footnote 9] In 1972, after
Bigelow's prosecution was begun, Virginia adopted Acts of Assembly 1972, c. 642, now
codified as Va. Code Ann. 18.1-417.2 (Supp. 1975). This statute is similar to the New York
statute described in n. 8, supra, and is directed at for-profit medical referrals within
Virginia. The statute prohibits engaging for profit "in any business which in whole
or in part includes the referral or recommendation of persons to a physician, hospital,
health related facility, or dispensary for any form of medical care or treatment of any
ailment or physical condition." Acceptance of a fee for any [421 U.S. 809, 824] such referral or recommendation
"shall create a presumption that the business is engaged in such service for
profit." Violation of the statute is a misdemeanor punishable by imprisonment for not
longer than one year or a fine of not more than $5,000, or both. By a 1973 amendment, Acts
of Assembly 1973, c. 529, to its statute dealing with unprofessional conduct by a member
of the medical or a related profession, Virginia prohibits advertising by a physician.
Specifically, Va. Code Ann. 54-317 (1974) now provides: "Any practitioner of medicine
. . . shall be considered guilty of unprofessional conduct if he: . . . . . "(13)
Advertises to the general public directly or indirectly in any manner his professional
services, their costs, prices, fees, credit terms or quality." See also Va. Code Ann.
54-278.1 and 54-317 (4), (5), and (6) (1974). We, of course, have no occasion to comment
here on whatever constitutional issue, if any, may be raised with respect to these
statutes.
[Footnote 10] We have no
occasion, therefore, to comment on decisions of lower courts concerning regulation of
advertising in readily distinguishable fact situations. Wholly apart from the respective
rationales that may have been developed by the courts in those cases, their results are
not inconsistent with our holding here. In those cases there usually existed a clear
relationship between the advertising in question and an activity that the government was
legitimately regulating. See, e. g., United States v. Bob Lawrence Realty, Inc., 474 F.2d
115, 121 (CA5), cert. denied, 414 U.S. 826
(1973); Rockville Reminder, Inc. v. United States Postal Service, 480 F.2d 4 (CA2 1973);
United States v. Hunter, 459 F.2d 205 (CA4), cert. denied, 409 U.S. 934
(1972). Nor need we comment here on the First Amendment ramifications of legislative
prohibitions of certain kinds of advertising in the electronic media, where the
"unique characteristics" of this form of communication "make it especially
subject to regulation in the public interest." Capital Broadcasting Co. v. Mitchell,
333 F. Supp. 582, 584 (DC 1971), aff'd, 405 U.S.
1000 (1972). See also Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968),
cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842
(1969); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94
(1973). Our decision also is in no way inconsistent with our holdings in the Fourteenth
Amendment cases that concern the regulation of professional activity. See North Dakota
Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156
(1973); Head v. New Mexico Board, 374 U.S. 424
(1963); Williamson v. Lee Optical Co., 348 U.S. 483
(1955); Barsky v. Board of Regents, 347 U.S. 442
(1954); Semler v. Dental Examiners, 294 U.S. 608 (1935).
[Footnote 11] See also Adderley
v. Florida, 385 U.S.
39, 46-48 (1966); Cox v. Louisiana, 379 U.S.
536, 554 (1965); Poulos v. New Hampshire, 345 U.S.
395, 405 (1953); Kunz v. New York, 340 U.S.
290, 293-294 (1951); Cox v. New Hampshire, 312 U.S.
569, 575-576 (1941).
[Footnote 12] See State v.
Abortion Information Agency. Inc., 69 Misc. 2d 825, 323 N. Y. S. 2d 597 (1971); see also
Mitchell Family Planning, Inc. v. City of Royal Oak, 335 F. Supp. 738 (ED Mich. 1972).
[Footnote 13] See Note, Freedom
of Expression in a Commercial Context, 78 Harv. L. Rev. 1191, 1197-1198 (1965);
Developments in the Law - Deceptive Advertising, 80 Harv. L. Rev. 1005, 1010-1015 (1967).
[Footnote 14] We are not required
to decide here what the First Amendment consequences would be if the Virginia
advertisement promoted an activity in New York which was then illegal in New York. An
example would be an advertisement announcing the availability of narcotics in New York
City when the possession and sale of narcotics was proscribed in the State of New York.
[Footnote 15] The State so
indicated at oral argument. Tr. of Oral Arg. 37-38. It, however, was never so applied. In
the light of its "effective repeal," as the State's counsel observed during the
oral argument, "[w]e will never know" how far, under appellee's theory, it might
have reached. Id., at 38.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins, dissenting.
The Court's opinion does not confront head-on the question which this case poses, but
makes contact with [421 U.S. 809, 830]
it only in a series of verbal sideswipes. The result is the fashioning of a doctrine which
appears designed to obtain reversal of this judgment, but at the same time to save
harmless from the effects of that doctrine the many prior cases of this Court which are
inconsistent with it.
I am in agreement with the Court, ante, at 817-818, that Virginia's statute cannot
properly be invalidated on grounds of overbreadth,1 given that the sole prosecution which has ever been brought under this
now substantially altered statute is that now in issue. "It is the law as applied
that we review, not the abstract, academic questions which it might raise in some more
doubtful case." Saia v. New York, 334 U.S.
558, 571 (1948) (Jackson, J., dissenting).
Since the Court concludes, apparently from two lines of the advertisement, ante, at
812, that it conveyed information of value to those interested in the "subject matter
or the law of another State and its development" and to those "seeking reform in
Virginia," ante, at 822, and since the ad relates to abortion, elevated to
constitutional stature by the Court, it concludes that this advertisement is entitled to
something more than the limited constitutional protection traditionally accorded
commercial advertising. See ante, at 825 n. 10. Although recognizing that
"[a]dvertising, like all public expression, may be subject to reasonable regulation
that serves a legitimate public interest," ante, at 826, the Court for reasons not
entirely clear to me concludes that Virginia's interest is of "little, if any,
weight." Ante, at 828. [421 U.S. 809,
831]
If the Court's decision does, indeed, turn upon its conclusion that the advertisement
here in question was protected by the First and Fourteenth Amendments, the subject of the
advertisement ought to make no difference. It will not do to say, as the Court does, that
this advertisement conveyed information about the "subject matter or the law of
another State and its development" to those "seeking reform in Virginia,"
and that it related to abortion, as if these factors somehow put it on a different footing
from other commercial advertising. This was a proposal to furnish services on a commercial
basis, and since we have always refused to distinguish for First Amendment purposes on the
basis of content, it is no different from an advertisement for a bucket shop operation or
a Ponzi scheme which has its headquarters in New York. If Virginia may not regulate
advertising of commercial abortion agencies because of the interest of those seeking to
reform Virginia's abortion laws, it is difficult to see why it is not likewise precluded
from regulating advertising for an out-of-state bucket shop on the ground that such
information might be of interest to those interested in repealing Virginia's "blue
sky" laws.
As a threshold matter the advertisement appears to me, as it did to the courts below,
to be a classic commercial proposition directed toward the exchange of services rather
than the exchange of ideas. It was apparently also so interpreted by the newspaper which
published it which stated in apparent apology in its following issue that the
"`Weekly collective has since learned that this abortion agency . . . as well as a
number of other commercial groups are charging women a fee for a service which is done
free by Women's Liberation, Planned Parenthood, and others.'" 213 Va. 191, 194, 191
S. E. 2d 173, 175 (1972). Whatever slight factual content the advertisement may contain
and [421 U.S. 809, 832] whatever
expression of opinion may be laboriously drawn from it does not alter its predominantly
commercial content. "If that evasion were successful, every merchant who desires to
broadcast . . . need only append a civic appeal, or a moral platitude, to achieve immunity
from the law's command." Valentine v. Chrestensen, 316 U.S.
52, 55 (1942). See, e. g., Ginzburg v. United States, 383 U.S.
463, 474 n. 17 (1966). I am unable to perceive any relationship between the instant
advertisement and that for example in issue in New York Times Co. v. Sullivan, 376 U.S.
254, 292 (1964). Nor am I able to distinguish this commercial proposition from that
held to be purely commercial in Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.S. 376
(1973). As the Court recognizes, ante, at 819-821, a purely commercial proposal is
entitled to little constitutional protection.
Assuming arguendo that this advertisement is something more than a normal commercial
proposal, I am unable to see why Virginia does not have a legitimate public interest in
its regulation. The Court apparently concedes, ante, at 825 n. 10, and our cases have long
held, that the States have a strong interest in the prevention of commercial advertising
in the health field - both in order to maintain high ethical standards in the medical
profession and to protect the public from unscrupulous practices. See, e. g., Semler v.
Dental Examiners, 294
U.S. 608, 612 (1935); Williamson v. Lee Optical Co., 348 U.S.
483, 490-491 (1955); North Dakota Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156
(1973). And the interest asserted by the Supreme Court of Virginia in the Virginia statute
was the prevention of commercial exploitation of those women who elect to have an
abortion:
- "It is clearly within the police power of the state to enact reasonable measures to
ensure that pregnant [421 U.S. 809, 833]
women in Virginia who decide to have abortions come to their decisions without the
commercial advertising pressure usually incidental to the sale of a box of soap powder.
And the state is rightfully interested in seeing that Virginia women who do decide to have
abortions obtain proper medical care and do not fall into the hands of those interested
only in financial gain, and not in the welfare of the patient." 213 Va., at 196, 191
S. E. 2d, at 176.
The concern of the Virginia Supreme Court was not a purely hypothetical one. As the
majority notes, ante, at 822-823, n. 8, although New York at the time of this
advertisement allowed profitmaking abortion referral agencies, it soon thereafter passed
legislation prohibiting commercial advertisement of the type here in issue. The court in
S. P. S. Consultants, Inc. v. Lefkowitz, 333 F. Supp. 1373, 1378 (SDNY 1971), quoted the
author of that legislation on the reasons for its passage:
- "`Because New York State has the most liberal abortion statute within the
Continental United States, thousands of women from all over the country are coming into
New York State . . . . [M]ost of these women came here through referral agencies who
advertise nationally. These agencies, for a sizable fee, make all abortion arrangements
for a patient. We also learned that certain hospitals give discounts to these lucrative,
profit-making organizations. Thus, at the expense of desperate, frightened women these
agencies are making a huge profit - some, such a huge profit that our Committee members
were actually shocked."
See, e. g., State v. Mitchell, 66 Misc. 2d 514, 321 N. Y. S. 2d 756 (1971); State v.
Abortion Information Agency, Inc., 69 Misc. 2d 825, 323 N. Y. S. 2d 597 (1971). [421 U.S. 809, 834]
Without denying the power of either New York or Virginia to prohibit advertising such
as that in issue where both publication of the advertised activity and the activity itself
occur in the same State, the Court instead focuses on the multistate nature of this
transaction, concluding that a State "may not, under the guise of exercising internal
police powers, bar a citizen of another State from disseminating information about an
activity that is legal in that State." Ante, at 824-825. And the Court goes so far as
to suggest that it is an open question whether a State may constitutionally prohibit an
advertisement containing an invitation or offer to engage in activity which is criminal
both in the State of publication and in the proposed sites of the crime. See ante, at 828
n. 14.
The source of this rigid territorial limitation on the power of the States in our
federal system to safeguard the health and welfare of their citizens is not revealed. It
is surely not to be found in cases from this Court.2 [421 U.S. 809, 835]
Beginning at least with our decision in Delamater v. South Dakota, 205 U.S. 93, 100
(1907), we have consistently recognized that irrespective of a State's power to regulate
extraterritorial commercial transactions in which its citizens participate it retains an
independent power to regulate the business of commercial solicitation and advertising
within its borders. Thus, for example, in Head v. New Mexico Board, 374 U.S. 424
(1963), we upheld the power of New Mexico to prohibit commercial advertising by a New
Mexico radio station of optometric services provided in Texas. Mr. JUSTICE BRENNAN,
concurring in that opinion, noted that a contrary result might well produce "a
`no-man's land' . . . in which there would be at best selective policing of the various
advertising abuses and excesses which are now very extensively regulated by state
law." Id., at 446. See, e. g., Packer Corp. v. Utah, 285 U.S. 105 (1932);
Breard v. Alexandria, 341 U.S. 622
(1951).
Were the Court's statements taken literally, they would presage a standard of the
lowest common denominator for commercial ethics and business conduct. Securities issuers
could circumvent the established bluesky laws of States which had carefully drawn such
laws for the protection of their citizens by establishing as a situs for transactions
those States without such regulations, while spreading offers throughout the country. Loan
sharks might well choose States with unregulated small loan industries, luring the unwary
with immune [421 U.S. 809, 836]
commercial advertisements. And imagination would place the only limit on the use of such a
"no-man's land" together with artificially created territorial contacts to bilk
the public and circumvent long-established state schemes of regulation.
Since the Court saves harmless from its present opinion our prior cases in this area,
ante, at 825 n. 10, it may be fairly inferred that it does not intend the results which
might otherwise come from a literal reading of its opinion. But solely on the facts before
it, I think the Court today simply errs in assessing Virginia's interest in its statute
because it does not focus on the impact of the practices in question on the State. Cf.
Young v. Masci, 289 U.S.
253 (1933). Although the commercial referral agency, whose advertisement in Virginia
was barred, was physically located outside the State, this physical contact says little
about Virginia's concern for the touted practices. Virginia's interest in this statute
lies in preventing commercial exploitation of the health needs of its citizens. So long as
the statute bans commercial advertising by publications within the State, the
extraterritorial location at which the services are actually provided does not diminish
that interest.
Since the statute in question is a "reasonable regulation that serves a legitimate
public interest," ante, at 826, I would affirm the judgment of the Supreme Court of
Virginia.
[Footnote 1] The Court, ante, at
817, states that the Virginia Supreme Court placed no limiting interpretation on its
statute and that it implied that the statute might apply to doctors, husbands, and
lecturers. The Court is in error: the Virginia Supreme Court stated that it would not
interpret the statute to encompass such situations. 213 Va. 191, 198, 191 S. E. 2d 173,
177 (1972).
[Footnote 2] The Court, ante, at
822-823, relies on Huntington v. Attrill, 146 U.S. 657, 669
(1892), for its major premise that Virginia could not regulate the relations of the
advertiser with its residents since these occurred in New York. To the extent that the
Court reads Huntington to impose a rigid and unthinking territorial limitation, whose
constitutional source is unspecified, on the power of the States to regulate conduct, it
is plainly wrong. The passage referred to by the Court in the Huntington opinion is dictum
and appears to be a statement of then-prevalent common-law rules rather than a
constitutional holding. And the attempt to impose such a rigid limitation on the power of
the States was first rejected by Mr. Justice Holmes, writing for the Court in Strassheim
v. Daily, 221 U.S.
280, 285 (1911): "Acts done outside a jurisdiction, but intended to produce and
producing detrimental effects within it, justify a State in punishing the cause of the
harm as if he had been present at the effect . . . ." Mr. Justice McKenna in Hyde v.
United States, 225
U.S. 347, 363 (1912), observed that "this must be so if we would fit the laws [421 U.S. 809, 835] and their
administration to the acts of men and not be led away by mere `bookish theorick.'"
See, e. g., Skiriotes v. Florida, 313 U.S.
69, 74-75 (1941); Ford v. United States, 273 U.S. 593, 620-621
(1927). To the extent that the Court's conclusion that Virginia has a negligible interest
in its statute proceeds from the assumption that the State was without power to regulate
the extraterritorial activities of the advertiser involving Virginia residents, it is
quite at war with our prior cases. [421 U.S.
809, 837]
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