Bigelow v. Com.
| Decision Date | 01 September 1972 |
| Citation | 213 Va. 191,191 S.E.2d 173 |
| Parties | Jeffery C. BIGELOW, etc., v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
John C. Lowe, F. Guthrie Gordon, III, Charlottesville (Lowe & Gordon, Charlottesville, on brief), for plaintiff in error.
D. Patrick Lacy, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., William G. Broaddus, Asst. Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN and HARMAN, JJ.
Jeffery C. Bigelow 1 was tried by the court, sitting without a jury, and convicted of encouraging or prompting the procuring of abortion by publication, advertisement, sale, or circulation of the Virginia Weekly, a newspaper published in Charlottesville, in violation of Code § 18.1--63. He was fined $500, $350 of which was suspended upon condition that he not further violate § 18.1--63. We granted him a writ of error.
The case comes before us upon a stipulation of fact and certain exhibits. Bigelow had direct responsibility for the publication and circulation in Albemarle County of the February 8, 1971 issue of the Virginia Weekly. The issue contained 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
or call any time
(212) 371-6670 or (212) 371-6650
STRICTLY CONFIDENTIAL. We will make
all arrangements for you and help you
with information and counseling.
The questions presented on this appeal are whether Bigelow violated Code § 18.1--63 by publishing the advertisement, and if so, whether the statute is constitutional under the First Amendment to the Constitution of the United States and Article 1, § 12, of the Constitution of Virginia.
Section 18.1--63, Code of 1950, as amended, 1960 Repl.Vol., provided.: 2
'In any person, by publication, lecture, advertisement, or by the sale of circulation of any publication, or in any other manner, encourage or prompt the procuring of abortion or miscarriage, he shall be guilty of a misdemeanor.'
Bigelow first contends that the advertisement was not in violation of § 18.1--63. He says the advertisement did not encourage or persuade women to obtain abortions, but instead merely informed those who had already rejected their pregnancies that services were available for legal abortions. We do not agree. The language of the advertisement clearly exceeded an informational status when it offered to make all arrangements for immediate placement in accredited hospitals and clinics at low cost. It constituted an active offer to perform a service, rather than a passive statement of fact. By offering to arrange for the placement of pregnant women, the advertisement amounted to an encouragement or a prompting to procure an abortion, and thus was violative of the language and intent of Code § 18.1--63.
This brings us to the question of the constitutionality of Code § 18.1--63. Bigelow contends that the statute infringes the First Amendment rights of free speech and free press and is, therefore, unconstitutional.
We reject this contention. We are not dealing here with the traditional press role of disseminating information and communicating opinion, but with a commercial advertisement promoting the services of an abortion referral agency. That this is true is shown by the advertisement itself and by an exhibit which is in the record.
The advertisement holds out to pregnant women the offer, by the Women's Pavilion, to make all arrangements and to secure immediate placement in a hospital or clinc for an abortion. All this, the advertisement says, will be done 'at low cost.' The printed words, whether read literally or rhetorically, can only mean that the agency, for a fee, will make the necessary business arrangements with doctors and hospitals or clinics to secure an abortion for the customer. Thus, the commercial nature of both the advertiser and the advertisement is patently revealed.
That is enough by itself, but an exhibit in the record in the form of one of the issues of the publication in question provides additional proof. The May-June, 1971 issue of the Virginia Weekly, in an article entitled 'abortion rap,' reported the arrest of staff members for publishing in the February issue the advertisement in dispute. In the same article, it was stated, in apparent apology, that the 'Weekly collective has since learned that this abortion agency,' obviously meaning the Women's Pavilion, '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.'
The question becomes whether such an advertisement may be constitutionally prohibited by the state. We answer the question in the affirmative.
In a case directly in point, United States v. Hunter, 459 F.2d 205 (4th Cir. 1972), the government sought to enjoin Hunter, a newspaper publisher, from carrying advertisements in his paper allegedly violative of a section of the Civil Rights Act of 1968, which prohibits advertising of an intent to discriminate in the sale or rental of a dwelling. 42 U.S.C. § 3604(c). The district court held that the Act did not contravene the First Amendment and that a court might, therefore, constitutionally enjoin a newspaper from printing advertisements in violation of the statute. In affirming, the Fourth Circuit stated:
'The (district) court's conclusion is supported by an unbroken line of authority from the Supreme Court down which distinguishes between the expression of ideas protected by the First Amendment and commercial advertising in a business context. It is now well settled that, while 'freedom of communicating information and disseminating opinion' enjoys the fullest protection of the First Amendment, 'the Constitution imposes no such restraint on government as respects purely commercial advertising." 459 F.2d at 211 (footnotes omitted).
In reply to Hunter's contention that the above rule did not apply to newspapers, the court stated that 'a newspaper will not be insulated from the otherwise valid regulation of economic activity merely because it also engages in constitutionally protected dissemination of ideas.' 459 F.2d at 212. And at another point the court said that if 'an individual advertiser has no constitutional or statutory right to circulate a discriminatory housing advertisement, a newspaper can stand in no better position in printing that unlawful advertisement at the individual's request.' 459 F.2d at 214.
Hunter is but one of numerous cases upholding the power of government to regulate commercial advertising. The source of authority for these decisions is Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). In that case, the United States Supreme Court had before it the question of the constitutionality of a New York City ordinance which forbade distribution in the streets of commercial and business advertising matter. Chrestensen had attempted to distribute a double-faced handbill, one side advertising an exhibit for profit and the other expressing protest against the city's efforts to thwart the exhibit. The police interfered with the distribution, and Chrestensen sought to enjoin Valentine, the police commissioner, from such interference. The district court granted the injunction, and the circuit court affirmed. However, the Supreme Court reversed, holding that the First Amendment imposed no restraint upon proscription by states and localities of purely commercial advertising and that it made no difference that one side of Chrestensen's handbill contained 'matter proper for public information.' 316 U.S. at 55, 62 S.Ct. 920.
Other cases upholding the right of government to regulate commercial advertising are: New York State Broadcasters Ass'n v. United States, 414 F.2d 990, 998 (2d Cir. 1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Branzhaf v. F.C.C., 132 U.S.App.D.C. 14, 31--35, 405 F.2d 1082, 1099--1103 (1968), cert. denied sub nom. Tobacco Institute, Inc. et al. v. F.C.C., 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); Capital Broadcasting Company v. Mitchell, 333 F.Supp. 582 (D.D.C.1971) (three-judge court), aff'd sub nom. Capital Broadcasting Co. et al. v. Acting Attorney General et al., 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972); Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 64 Cal.Rptr. 430, 434, 434 P.2d 982, 986 (1967).
The rule that the First Amendment does not prohibit government regulation of commercial advertising is especially applicable where, as here, the advertising relates to the medical-health field. Patterson Drug Company v. Kingery, 305 F.Supp. 821, 825 (W.D.Va.1969) (three-judge court); United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 152, 93 A.2d 362, 366 (1952); Planned Parenthood Committee of Phoenix, Inc. v. Maricopa County, 92 Ariz. 231, 240, 375 P.2d 719, 725 (1962).
Regulations affecting advertising in the medical-health field have also been attacked on Fourteenth Amendment grounds. The attacks have been rejected. Williamson v. Lee Optical Co., 348 U.S. 483, 490, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610--611, 55 S.Ct. 570, 79 L.Ed. 1086 (1935); Patterson Drug Company v. Kingery, supra, 305 F.Supp. at 823--825; Ritholz v. Commonwealth, 184 Va. 339, 369, 35 S.E.2d 210, 224 (1945); Goe v. Gifford, 168 Va. 497, 501--503, 191 S.E. 783, 784--785 (1937).
Focusing attention upon Code § 18.1--63, the statute here in question, we emphasize that it deals with abortion, a matter vitally affecting public health and welfare and in the important realm of medicine. It is clearly within the police power of the state to enact reasonable measures to ensure that pregnant women...
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44 600 Bigelow v. Virginia 8212 1309
...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 th......
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Jaynes v. Com., Record No. 062388.
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Bigelow v. Com.
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