Bigelow v. Virginia
421 U.S. 809 (1975)
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Rule of Law:
Speech is not stripped of First Amendment protection merely because it appears in the form of a paid commercial advertisement. A state cannot, under the guise of exercising its police powers, constitutionally prohibit its citizens from receiving factual information of public interest about a commercial activity that is legal in another state.
Facts:
- Jeffrey C. Bigelow was the managing editor of the Virginia Weekly, a newspaper circulated in Charlottesville, Virginia.
- On February 8, 1971, the Virginia Weekly published an advertisement for a New York City organization named Women's Pavilion.
- The advertisement stated that abortions were legal in New York without any residency requirement.
- It offered to help women with unwanted pregnancies by providing information, counseling, and "immediate placement in accredited hospitals and clinics at low cost."
- At the time of publication, a Virginia statute made it a misdemeanor for any person, by publication, to "encourage or prompt the procuring of abortion."
- The abortion referral services advertised were legal in the State of New York at that time.
Procedural Posture:
- Jeffrey C. Bigelow was charged in Virginia with violating a state statute for publishing an abortion advertisement.
- He was first tried and convicted in the County Court of Albemarle County.
- Bigelow appealed to the Circuit Court of Albemarle County, where he was entitled to a trial de novo.
- Following a bench trial in the Circuit Court, Bigelow was again adjudged guilty.
- Bigelow appealed to the Supreme Court of Virginia, which affirmed his conviction.
- Bigelow then appealed to the U.S. Supreme Court, which vacated the Virginia court's judgment and remanded the case for reconsideration in light of Roe v. Wade.
- On remand, the Supreme Court of Virginia again affirmed the conviction.
- Bigelow again appealed to the U.S. Supreme Court, which noted probable jurisdiction to review the case.
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Issue:
Does a Virginia statute that makes it a misdemeanor to encourage or prompt the procuring of an abortion through a publication violate the First Amendment rights of a newspaper editor who published an advertisement for legal abortion services available in another state?
Opinions:
Majority - Mr. Justice Blackmun
Yes, the Virginia statute as applied to the appellant's publication of the advertisement unconstitutionally infringes upon his First Amendment rights. The Court reasoned that the advertisement did more than simply propose a commercial transaction; it contained factual material of clear public interest, such as the legality and availability of abortions in New York. This informational content grants the advertisement a degree of First Amendment protection that is not negated by its commercial nature. Virginia's asserted interest in maintaining the quality of medical care within its own borders does not justify a statute that prevents its citizens from receiving information about legal activities in another state. A state may not bar a citizen of another state from disseminating information about an activity that is legal in that state.
Dissenting - Mr. Justice Rehnquist
No, the Virginia statute does not violate the appellant's First Amendment rights. The dissent argued that the advertisement was a classic commercial proposition entitled to little constitutional protection, not a protected exchange of ideas. Virginia has a legitimate and strong public interest in regulating advertising in the medical and health field to protect its citizens from commercial exploitation and unscrupulous practices. The Court's decision improperly limits a state's power to safeguard the health and welfare of its citizens from commercial solicitations originating in other states, creating a potential 'no-man's land' for regulating business conduct.
Analysis:
This decision marked a significant departure from the 'purely commercial speech' doctrine established in Valentine v. Chrestensen, which had suggested commercial advertising received no First Amendment protection. By recognizing that advertising containing factual information of public interest is constitutionally protected, Bigelow laid the groundwork for the modern commercial speech doctrine. It establishes the important principle that a state cannot shield its citizens from information about legal activities occurring in other states, thereby limiting a state's police power when it conflicts with the interstate dissemination of protected speech.
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