421 U.S. 809 (1975), 73-1309, Bigelow v. Virginia

• Docket Nº: No. 73-1309
• Citation: 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600
• Party Name: Bigelow v. Virginia
• Case Date: June 16, 1975
• Court: United States Supreme Court

Page 809

421 U.S. 809 (1975)

95 S.Ct. 2222, 44 L.Ed.2d 600

Bigelow

v.

Virginia

No. 73-1309

United States Supreme Court

June 16, 1975

Argued December 18, 1974

APPEAL FROM THE SUPREME COURT OF VIRGINIA

Syllabus

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 [95 S.Ct. 2227] in question had commercial

Page 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.

Page 811

BLACKMUN, J., lead opinion

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

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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

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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,

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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," [95 S.Ct. 2229] 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

Page 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...