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Bigelow v. Virginia
Citations: 44 L. Ed. 2d 600; 95 S. Ct. 2222; 421 U.S. 809; 1975 U.S. LEXIS 73; 1 Media L. Rep. (BNA) 1919Docket: 73-1309
Court: Supreme Court of the United States; June 16, 1975; Federal Supreme Court; Federal Appellate Court
Mr. Justice Buackmun's opinion addresses the conviction of Jeffrey C. Bigelow, managing editor of the Virginia Weekly newspaper, for violating a Virginia statute prohibiting the promotion of abortions through publications. The statute classified such promotion as a misdemeanor. The central issue is whether the statute unconstitutionally infringed upon Bigelow's First Amendment rights, which are applicable to the states via the Fourteenth Amendment. The Virginia Weekly published an advertisement on February 8, 1971, promoting abortion services offered by the Women's Pavilion in New York, indicating that abortions were legal in New York and that no residency requirements existed. The ad included information about placement in accredited facilities and promised confidentiality and assistance. Bigelow was charged under the Virginia Code, which criminalizes encouraging or prompting abortions via various means, including advertisements. After being convicted in the County Court of Albemarle County, he appealed to the Circuit Court, waiving a jury trial. The evidence presented included the contested advertisement and a comparable issue from Redbook magazine. The Circuit Court upheld Bigelow's conviction, rejecting his argument that the advertisement was simply informational, asserting that it constituted an active offer for services. The Supreme Court of Virginia upheld this decision in a 4-2 vote, categorizing the advertisement as a commercial message that could be constitutionally restricted by the state, especially in the medical and health context. Bigelow was fined $500, with $350 suspended on the condition of no further violations. The court evaluated the validity of a statute under the State's police power, affirming its purpose to prevent commercial pressures on pregnant women in Virginia making abortion decisions. It addressed Bigelow's claim of overbreadth, ruling that he lacked standing due to his purely commercial activities, which did not allow him to rely on hypothetical rights of non-commercial entities. After Bigelow's appeal, significant cases, Roe v. Wade and Doe v. Bolton, were decided, leading to the vacating of his conviction for reevaluation. The Supreme Court of Virginia reaffirmed the conviction, stating that those cases did not address abortion advertising and maintained their original stance. Bigelow appealed again, prompting a review of the First Amendment issue. The court recognized that standing to challenge a statute on overbreadth grounds does not depend on whether the challenger’s conduct is constitutionally protected. This principle allows individuals engaged in non-privileged conduct to contest statutes affecting First Amendment rights, as the potential for improper applications of such statutes poses a broader societal risk. It emphasized that a claim of specific harm or threat is necessary for standing, which Bigelow met due to his conviction and role as an editor. The court concluded that the Virginia courts erred in denying him standing without evaluating the substantiality of the overbreadth concerning pure speech, marking the significance of addressing potential overreach in legislation. The Supreme Court of Virginia did not impose any constraining interpretation on the statute in question, suggesting that the rights of doctors, husbands, and lecturers, though noncommercial, could still be subject to the statute. However, the statute has since been amended to effectively nullify its previous application, thereby eliminating concerns about it being enforced against the appellant or infringing on the rights of others in the future. Consequently, the issue of the statute's overbreadth is now moot. The court shifted focus to whether the statute, as applied to the appellant, infringed on constitutionally protected speech. The Supreme Court of Virginia assumed that First Amendment protections do not extend to paid commercial advertisements. However, established case law indicates that commercial speech retains First Amendment protections, regardless of its financial motives or commercial nature. The mere presence of commercial activity does not justify limiting First Amendment rights. Although certain categories of speech, such as obscenity or incitement, are not protected, the advertisement in question does not fall into those categories. The appellee referenced the Valentine v. Chrestensen case, where an ordinance was upheld that restricted the distribution of a commercial handbill. The court ruled that the ordinance was a reasonable regulation of commercial advertising but clarified that this does not imply that all regulations on commercial speech are constitutionally valid. The ruling does not support a broad interpretation that advertising lacks protection under the First Amendment. Subsequent cases, including New York Times Co. v. Sullivan, further affirm the principle that commercial advertising is not categorically unprotected. The Court determined that the advertisement in question, despite containing factually incorrect defamatory content, deserved the same constitutional protection as ordinary speech. The Court emphasized that the payment for the advertisement was irrelevant, similar to the sale of newspapers and books. It distinguished this case from Chrestensen, where the handbill only proposed a commercial transaction, noting that the New York Times advertisement provided information, expressed opinions, presented grievances, protested abuses, and sought financial support for a public interest movement. The decision reaffirmed that commercial advertising has some First Amendment protection, as seen in Pittsburgh Press Co. v. Human Rel. Comm’n, where the Court recognized that advertisements could receive First Amendment protections if the underlying commercial activity is legal. In the current case, the advertisement went beyond a mere commercial proposal, containing significant factual content of public interest, such as the legality of abortions in New York. It served the purpose of communicating information and opinions, appealing to a broad audience, including those genuinely interested in the subject and those advocating for reform in Virginia. The advertisement's existence and the services offered were deemed newsworthy, and the activity advertised was lawful in New York, which Virginia could not regulate. Virginia lacked the authority to oversee the services provided in New York or the professionals involved, nor could it prohibit its residents from traveling to New York for those services. The Court concluded that a state cannot exert control over another state's internal affairs simply because the health and welfare of its citizens may be impacted. The excerpt addresses the limitations of state power regarding the regulation of advertising, particularly concerning activities legal in other states. It asserts that while states can regulate advertisements related to activities they may legitimately control, they cannot suppress information dissemination about legal activities in other jurisdictions under the pretense of internal police powers. The Virginia courts erred by concluding that advertising lacks First Amendment protection and that the appellant, Bigelow, had no legitimate interest in that protection. The text emphasizes that advertising retains First Amendment rights, regardless of how a state labels it, and that courts must evaluate the First Amendment interests against the asserted public interest of regulation. The excerpt also discusses the state's interest in maintaining medical care quality but notes that no evidence was presented indicating that the specific advertisement affected medical services in Virginia. The statute in question targeted informative material related to services available in New York, not Virginia-regulated practices. Virginia's attempt to restrict its citizens from accessing information about legal New York services was deemed to hold minimal weight, as there was no indication that the advertisement was misleading or involved illegal activities in either state. Appellant's activities posed no risk of invading the privacy of others or infringing on rights, as observers would not be forced to engage with the advertisement. The case had heightened First Amendment implications because the statute was enforced against the appellant as the publisher and editor of a newspaper, rather than against the advertiser or a referral agency. Upholding the statute could allow Virginia to exert broad control over national and interstate publications carrying similar advertisements, potentially impairing their operation. The First Amendment favors the free dissemination of information, and any governmental action that limits this discussion is unconstitutional. Hence, the application of Va. Code Ann. 18.1-63 (1960) to the appellant's ad was found to violate First Amendment rights, leading to the reversal of the Supreme Court of Virginia's judgment. The publication in question was described as an 'underground newspaper,' though the appellee disputed this characterization. The statute, dating back to 1878 and amended in 1972, restricts its application to advertisements promoting illegal abortions in Virginia. The state acknowledged that the amended statute would not apply to the appellant's advertisement and asserted that this case is fundamentally about First Amendment rights rather than abortion. Notably, references were made to past judicial opinions questioning the validity of the 'commercial speech' distinction. Following Bigelow's February 1971 advertisement, New York enacted Laws 1971, c. 725, effective July 1, 1971, later amended by Laws 1972, c. 17. Section 4500 establishes that for-profit medical referral services violate ethical standards and public policy, thereby declaring such entities unlawful. Section 4501 (1) prohibits any for-profit business from referring individuals to medical professionals or facilities, with a fee for referrals creating a presumption of profit motives. Violations are classified as misdemeanors, punishable by up to one year in prison or a fine of up to $5,000. Article 4502 (1) exempts nonprofit corporations under 501(c) of the Internal Revenue Code from these provisions. The 1971 statute has survived constitutional scrutiny. In 1972, Virginia enacted a similar law (Va. Code Ann. 18.1—417.2), prohibiting for-profit medical referrals and establishing a presumption of profit for referral fees. A 1973 Virginia amendment barred physicians from advertising their services, deeming such actions unprofessional conduct. The document refrains from discussing potential constitutional challenges related to these statutes, noting that the outcomes align with existing legal interpretations regarding government regulation of advertising related to professional services. It also mentions the ambiguous implications of First Amendment rights concerning advertisements promoting illegal activities in other jurisdictions, exemplified by narcotics advertising in New York, but states that this issue was not directly addressed in the context provided.