Bigelow v. Virginia

421 U.S. 809

Case Year: 1975

Case Ruling: 7-2, Reversed

Opinion Justice: Blackmun

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Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Brennan, Burger, Douglas, Marshall, Stewart, Powell


1st Concurring Opinion



1st Dissenting Opinion

Author: Rehnquist

Joiner(s): White

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


As managing editor of the Virginia Weekly, a Charlottesville newspaper focusing on the University of Virginia community, Jeffrey C. Bigelow approved for publication an advertisement for a service that arranged abortions in New York for Virginia residents. It began: "UNWANTED PREGNANCY, LET US HELP YOU. Abortions are now legal in New York. No residency requirements..." The ad ran on February 8, 1971, two years before the Supreme Court's decision inRoe v. Wade (1973), which legalized abortion. In 1971 abortions were still prohibited in Virginia.

Three months later, Virginia charged Bigelow with violating an 1878 state law that declared, "if any person, by publication, lecture, advertisement ... encourage or prompt the procuring of abortion ... he shall be guilty of a misdemeanor." Bigelow was the first individual ever accused of violating the law.

Throughout his trial and appeals, Bigelow's attorneys (including Melvin Wulf of the ACLU) never questioned the law's applicability; by authorizing the ad, Bigelow had violated the state statute. Instead, they put forth a unique and broad-based argument: because the First Amendment protected commercial speech, Virginia's law was unconstitutional. Several judicial bodies, including the Virginia Supreme Court, rejected this line of reasoning, claiming that the Free Speech Clause did not apply to paid commercial advertisements. Therefore, the U.S. Supreme Court addressed the question: Is commercial speech protected expression under the First Amendment?



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 Supreme Court of Virginia ... affirmed Bigelow's conviction.... 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."... 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."... 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."...

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....

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 (1943), or because appellant was paid for printing it, New York Times Co. v. Sullivan [1964]; Smith v. California (1959), or because appellant's motive or the motive of the advertiser may have involved financial gain, Thomas v. Collins (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 (1966).

Although other categories of speech--such as fighting words, Chaplinsky v. New Hampshire (1942), or obscenity, Roth v. United States (1957), Miller v. California (1973), or libel, Gertz v. Robert Welch, Inc. (1974), or incitement, Brandenburg v. Ohio (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 (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."...

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 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.

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 [1964], 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.... Chrestensen was distinguished on the ground that the handbill advertisement there did no more than propose a purely commercial transaction....

The principle that commercial advertising enjoys a degree of First Amendment protection was reaffirmed in Pittsburgh Press v. Human Rel. Comm'n (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."... But the Court indicated that the advertisements would have received some degree of First Amendment protection if the commercial proposal had been legal....

The legitimacy of appellant's First Amendment claim in the present case is demonstrated by the important differences between the advertisement presently at 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 (1973).... Thus, in this case, appellant's First Amendment interests coincided with the constitutional interests of the general public.

Moreover, the placement services advertised in appellant's newspaper were legally provided in New York at that time. The Virginia Legislature could not have regulated the advertiser's activity in New York, and obviously could not have proscribed the activity in that State.... Neither could Virginia prevent its residents from traveling to New York to obtain those services....

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....

Advertising, like all public expression, may be subject to reasonable regulation that serves a legitimate public interest.... 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."... 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....

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 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.... 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.... 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 outside Virginia's borders, activities that Virginia's 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, 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. There was no possibility that appellant's activity would invade the privacy of other citizens... or infringe on other rights. Observers would not have the advertiser's message thrust upon them as a captive audience....

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 the advertisement referred. Other states might do the same. The burdens thereby imposed on publications would impair, perhaps severely, their proper functioning.... The policy of the First Amendment favors dissemination of information and opinion....

We conclude that Virginia could not apply Va. Code Ann. [sec] 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.

It is so ordered.


The Court's opinion does not confront head-on the question which this case poses, but makes contact with 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....

Since the Court concludes, apparently from two lines of the advertisement,... 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,"... 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.... Although recognizing that "[a]dvertising, like all public expression, may be subject to reasonable regulation that serves a legitimate public interest," the Court for reasons not entirely clear to me concludes that Virginia's interest is of "little, if any, weight."...

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.... Whatever slight factual content the advertisement may contain and whatever expression of opinion may be laboriously drawn from it does not alter its predominantly commercial content.... I am unable to perceive any relationship between the instant advertisement and that for example in issue in New York Times Co. v. Sullivan (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 (1973). As the Court recognizes,... 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,... 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....

Since the statute in question is a "reasonable regulation that serves a legitimate public interest,"... I would affirm the judgment of the Supreme Court of Virginia.