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.
421 U. S.
815-818.
2. The statute as applied to appellant infringed
constitutionally protected speech under the First Amendment. Pp.
421 U. S.
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 in question had commercial
Page 421 U. S. 810
aspects or reflected the advertiser's commercial interests did
not negate all First Amendment guarantees. Pp.
421 U. S.
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.
421 U. S.
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.
421 U. S.
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.
421 U. S.
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.
421 U. S.
829.
Page 421 U. S. 811
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,
308 U. S. 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. [
Footnote
1]
On February 8, 1971, the Weekly's Vol. V, No. 6, was published
and circulated under the direct responsibility
Page 421 U. S. 812
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
Page 421 U. S. 813
the procuring of abortion or miscarriage, he shall be guilty of
a misdemeanor. [
Footnote
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. [
Footnote 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,
Page 421 U. S. 814
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,"
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 421 U. S. 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). [
Footnote
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."
[
Footnote 5] 214 Va. 341, 342,
200 S.E.2d 680 (1973). Once again, Bigelow appealed. We noted
probable jurisdiction in order to review the important First
Amendment issue presented. 418 U.S. 909 (1974).
II
This Court often has recognized that a defendant's standing to
challenge a statute on First Amendment grounds as facially
overbroad does not depend upon whether his own activity is shown to
be constitutionally privileged. The Court consistently has
permitted
"attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own
Page 421 U. S. 816
conduct could not be regulated by a statute drawn with the
requisite narrow specificity."
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S. 486
(1965).
See also Grayned v. City of Rockford, 408 U.
S. 104,
408 U. S. 114
(1972);
Gooding v. Wilson, 405 U.
S. 518,
405 U. S.
520-521 (1972);
Coates v. City of Cincinnati,
402 U. S. 611,
402 U. S. 616
(1971), and
id. at
402 U. S.
619-620 (WHITE, J., dissenting);
NAACP v.
Button, 371 U. S. 415,
371 U. S. 432
(1963);
Thornhill v. Alabama, 310 U. S.
88,
310 U. S. 97-98
(1940). The Supreme Court of Virginia itself recognized this
principle when it recently stated that "persons who engage in
nonprivileged conduct are not precluded from attacking a statute
under which they were convicted."
Owens v. Commonwealth,
211 Va. 633, 638639, 179 S.E.2d 477, 481 (1971).
"For, in appraising a statute's inhibitory effect upon [First
Amendment] rights, this Court has not hesitated to take into
account possible applications of the statute in other factual
contexts besides that at bar."
NAACP v. Button, 371 U.S. at
371 U. S. 432.
See generally Note, The First Amendment Overbreadth
Doctrine, 83 Harv.L.Rev. 844, 847-848 (1970).
This "exception to the usual rules governing standing,"
Dombrowski v. Pfister, 380 U.S. at
380 U. S. 486,
reflects the transcendent value to all society of constitutionally
protected expression. We give a defendant standing to challenge a
statute on grounds that it is facially overbroad, regardless of
whether his own conduct could be regulated by a more narrowly drawn
statute, because of the
"danger of tolerating, in the area of First Amendment freedoms,
the existence of a penal statute susceptible of sweeping and
improper application."
NAACP v. Button, 371 U.S. at
371 U. S.
433.
Of course, in order to have standing, an individual must present
more than "[a]llegations of a subjective
chill.'" There must be
a "claim of specific present objective
Page 421 U. S.
817
harm or a threat of specific future harm." Laird v.
Tatum, 408 U. S. 1,
408 U. S. 13-14
(1972). That requirement, however, surely is met under the
circumstances of this case, where the threat of prosecution already
has blossomed into the reality of a conviction, and where there can
be no doubt concerning the appellant's personal stake in the
outcome of the controversy. See Baker v. Carr,
369 U. S. 186,
369 U. S. 204
(1962). The injury of which appellant complains is one to him as an
editor and publisher of a newspaper; he is not seeking to raise the
hypothetical rights of others. See Moose Lodge No. 107 v.
Irvis, 407 U. S. 163,
407 U. S. 166
(1972); Breard v. Alexandria, 341 U.
S. 622, 341 U. S. 641
(1951). Indeed, unlike some cases in which the standing issue
similarly has been raised, the facts of this case well illustrate
"the statute's potential for sweeping and improper applications."
Gooding v. Wilson, 405 U.S. at 405 U. S.
532-533 (BURGER, C.J., dissenting).
Declaring a statute facially unconstitutional because of
overbreadth "is, manifestly, strong medicine," and "has been
employed by the Court sparingly, and only as a last resort."
Broadrick v. Oklahoma, 413 U. S. 601,
413 U. S. 613
(1973). But we conclude that the Virginia courts erred in denying
Bigelow standing to make this claim, where "pure speech", rather
than conduct was involved, without any consideration of whether the
alleged overbreadth was or was not substantial.
Id. at
413 U. S. 615,
413 U. S.
616.
The Supreme Court of Virginia placed no effective limiting
construction on the statute. Indeed, it characterized the rights of
doctors, husbands, and lecturers as "hypothetical," and thus seemed
to imply that, although these were in the noncommercial zone, the
statute might apply to them, too.
In view of the statute's amendment since Bigelow's conviction in
such a way as "effectively to repeal" its prior application, there
is no possibility now that the
Page 421 U. S. 818
statute's pre-1972 form will be applied again to appellant or
will chill the rights of others. As a practical matter, the issue
of its overbreadth has become moot for the future. We therefore
decline to rest our decision on overbreadth, and we pass on to the
further inquiry, of greater moment not only for Bigelow but for
others, whether the statute, as applied to appellant, infringed
constitutionally protected speech.
III
A. The central assumption made by the Supreme Court of Virginia
was that the First Amendment guarantee 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.
Pittsburgh
Press Co. v. Human Rel. Comm'n, 413 U.
S. 376,
413 U. S. 384
(1973);
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 266
(1964).
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, 319 U. S. 105,
319 U. S.
110-111 (1943), or because appellant was paid for
printing it,
New York Times Co. v. Sullivan, 376 U.S. at
376 U. S. 266;
Smith v. California, 361 U. S. 147,
361 U. S. 150
(1959), or because appellant's motive or the motive of the
advertiser may have involved financial gain,
Thomas v.
Collins, 323 U. S. 516,
323 U. S. 531
(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,
383 U. S. 463,
383 U. S. 474
(1966).
Page 421 U. S. 819
Although other categories of speech -- such as fighting words,
Chaplinsky v. New Hampshire, 315 U.
S. 568,
315 U. S. 572
(1942), or obscenity,
Roth v. United States, 354 U.
S. 476,
354 U. S.
481-485 (1957),
Miller v. California,
413 U. S. 15,
413 U. S. 23
(1973), or libel,
Gertz v. Robert Welch, Inc.,
418 U. S. 323
(1974), or incitement,
Brandenburg v. Ohio, 395 U.
S. 444 (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, 316 U. S.
52 (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."
Id. at
316 U. S. 54. It
said:
"We are equally clear that the Constitution imposes no such
restraint on government as respects purely commercial
advertising."
Ibid. 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
Page 421 U. S. 820
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. [
Footnote 6]
This Court's cases decided since
Chrestensen clearly
demonstrate as untellable any reading of that case that would give
it so broad an effect. In
New York Times Co. v. Sullivan,
supra, 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. It said:
"That the Times was paid for publishing the advertisement is as
immaterial in this connection as is the fact that newspapers and
books are sold."
376 U.S. at
376 U. S. 266.
Chrestensen was distinguished on the ground that the
handbill advertisement there did no more than propose
Page 421 U. S. 821
a purely commercial transaction, whereas the one in
New York
Times
"communicated information, expressed opinion, recited
grievances, protested claimed abuses, and sought financial support
on behalf of a movement whose existence and objectives are matters
of the highest public interest and concern."
Ibid.
The principle that commercial advertising enjoys a degree of
First Amendment protection was reaffirmed in
Pittsburgh Press
Co. v. Human Rel. Comm'n, 413 U. S. 376
(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."
Id. at
413 U. S. 385.
But the Court indicated that the advertisements would have received
some degree of First Amendment protection if the commercial
proposal had been legal. The illegality of the advertised activity
was particularly stressed:
"Any First Amendment interest which might be served by
advertising an ordinary commercial proposal and which might
arguably outweigh the governmental interest supporting the
regulation is altogether absent when the commercial activity itself
is illegal and the restriction on advertising is incidental to a
valid limitation on economic activity."
Id. at
413 U. S.
389.
B. The legitimacy of appellant's First Amendment claim in the
present case is demonstrated by the important differences between
the advertisement presently at
Page 421 U. S. 822
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, 410 U. S. 113
(1973), and
Doe v. Bolton, 410 U.
S. 179 (1973). Thus, in this case, appellant's First
Amendment interests coincided with the constitutional interests of
the general public. [
Footnote
7]
Moreover, the placement services advertised in appellant's
newspaper were legally provided in New York at that time. [
Footnote 8] The Virginia Legislature
could not have
Page 421 U. S. 823
regulated the advertiser's activity in New York, and obviously
could not have proscribed the activity in that State. [
Footnote 9]
Huntington v.
Attrill, 146 U. S. 657,
146 U. S. 669
(1892).
Page 421 U. S. 824
Neither could Virginia prevent its residents from traveling to
New York to obtain those services or, as the State conceded, Tr. of
Oral Arg. 29, prosecute them for going there.
See United States
v. Guest, 383 U. S. 745,
383 U. S.
757-759 (1966);
Shapiro v. Thompson,
394 U. S. 618,
394 U. S.
629-631 (1969);
Doe v. Bolton, 410 U.S. at
410 U. S. 200.
Virginia possessed no authority to regulate the services provided
in New York -- the skills and credentials of the New York
physicians and of the New York professionals who assisted them, the
standards of the New York hospitals and clinics to which patients
were referred, or the practices and charges of the New York
referral services.
A State does not acquire power or supervision over the internal
affairs of another State merely because the welfare and health of
its own citizens may be affected when they travel to that State. It
may seek to disseminate information so as to enable its citizens to
make better informed decisions when they leave. But it may not,
under the guise of exercising internal police powers, bar
Page 421 U. S. 825
a citizen of another State from disseminating information about
an activity that is legal in that State.
C. 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. We need not decide in this
case the precise extent to which the First Amendment permits
regulation of advertising that is related to activities the State
may legitimately regulate or even prohibit. [
Footnote 10]
Page 421 U. S. 826
Advertising, like all public expression, may be subject to
reasonable regulation that serves a legitimate public interest.
See Pittsburgh Press Co. v. Human Rel. Comm'n, supra; Lehman v.
City of Shaker Heights, 418 U. S. 298
(1974). [
Footnote 11] 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."
NAACP v. Button,
371 U.S. at
371 U. S. 429.
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. We need not decide here the
extent to which constitutional protection is afforded commercial
advertising under all circumstances and in the face of all kinds of
regulation.
IV
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
Page 421 U. S. 827
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.
Barsky
v. Board of Regents, 347 U. S. 442,
347 U. S. 451
(1954). 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. S. P. S. Consultants, Inc. v.
Lefkowitz, 333
F. Supp. 1373, 1378 (SDNY 1971). [
Footnote 12] 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
Page 421 U. S. 828
outside Virginia's borders, activities that Virginia's police
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,
[
Footnote 13] 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. [
Footnote
14] There was no possibility that appellant's activity would
invade the privacy of other citizens,
Breard v. Alexandria,
supra, or infringe on other rights. Observers would not have
the advertiser's message thrust upon them as a captive audience.
Lehman v. City of Shaker Heights, supra; Packer Corp. v.
Utah, 285 U. S. 105,
285 U. S. 110
(1932).
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
Page 421 U. S. 829
the advertisement referred. [
Footnote 15] Other States might do the same. The burdens
thereby imposed on publications would impair, perhaps severely,
their proper functioning.
See Miami Herald Publishing Co. v.
Tornillo, 418 U. S. 241,
418 U. S.
257-258 (1974). We know from experience that "liberty of
the press is in peril as soon as the government tries to compel
what is to go into a newspaper." 2 Z. Chafee, Government and Mass
Communications 633 (1947). The policy of the First Amendment favors
dissemination of information and opinion, and
"[t]he guarantees of freedom of speech and press were not
designed to prevent"
"the censorship of the press merely, but any action of the
government by means of which it might prevent such free and general
discussion of public matters as seems absolutely essential. . .
."
"2 Cooley, Constitutional Limitations 886 (8th ed.)."
Curtis Publishing Co. v. Butts, 388 U.
S. 130,
388 U. S. 150
(1967) (opinion of Harlan, J.).
We conclude that Virginia could not apply Va.Code Ann. § 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.
[
Footnote 1]
His brief describes the publication as an "underground
newspaper." Brief for Appellant 3. The appellee states that there
is no evidence in the record to support that description. Brief for
Appellee 3 n. 1.
[
Footnote 2]
We were advised by the State at oral argument that the statute
dated back to 1878, and that Bigelow's was the first prosecution
under the statute "in modern times," and perhaps the only
prosecution under it "at any time." Tr. of Oral Arg. 40. The
statute appears to have its origin in Va.Acts of Assembly
1877-1878, p. 281, c. 2, § 8.
[
Footnote 3]
The statute, as amended by Va.Acts of Assembly 1972, c. 725, now
reads:
"18.1-63. If any person, by publication, lecture, advertisement,
or by the sale or circulation of any publication, or through the
use of a referral agency for profit, or in any other manner,
encourage or promote the processing of an abortion or miscarriage
to be performed in this State which is prohibited under this
article, he shall be guilty of a misdemeanor."
It is to be observed that the amendment restricts the statute's
application, with respect to advertising, to an abortion illegal in
Virginia and to be performed there. Since the State's statutes
purport to define those abortions that are legal when performed in
the State,
see Va.Code Ann. §§ 18.1-62.1 and 18.1-62.3
(Supp. 1975), the State at oral argument described the pre-1972
form of § 18.13 as "effectively repealed by amendment," and, citing
Roe v. Wade, 410 U. S. 113
(1973), and
Doe v. Bolton, 410 U.
S. 179 (1973), the statute, as amended, as limited to an
abortion performed by a nonphysician. Tr. of Oral Arg. 38-39. In
any event, there is no dispute here that the amended statute would
not reach appellant's advertisement.
[
Footnote 4]
See Note, The First Amendment and Commercial
Advertising:
Bigelow v. Commonwealth, 60 Va.L.Rev. 154
(1974).
[
Footnote 5]
Virginia asserts, rightfully we feel, that this is "a First
Amendment case" and "not an abortion case." Brief for Appellee 15
n. 6; Tr. of Oral Arg. 26
[
Footnote 6]
MR. JUSTICE DOUGLAS, who was a Member of the Court when
Chrestensen was decided and who joined that opinion, has
observed: "The ruling was casual, almost offhand. And it has not
survived reflection."
Cammarano v. United States,
358 U. S. 498,
358 U. S. 514
(1959) (concurring opinion). MR. JUSTICE BRENNAN, joined by
JUSTICES STEWART, MARSHALL, and POWELL, has observed:
"There is some doubt concerning whether the 'commercial speech'
distinction announced in
Valentine v. Chrestensen . . .
retains continuing validity."
Lehman v. City of Shaker Heights, 418 U.
S. 298,
418 U. S. 314
n. 6 (1974) (dissenting opinion).
See also Pittsburgh Press Co.
v. Human Rel. Comm'n, 413 U. S. 376,
413 U. S. 393
(1973) (BURGER, C.J., dissenting);
id. at
413 U. S. 398
(DOUGLAS, J., dissenting);
id. at
413 U. S. 401
(STEWART, J., dissenting).
[
Footnote 7]
It was argued, too, that, under the circumstances, the
appearance of the advertisement in the appellant's newspaper was
"an implicit editorial endorsement" of its message. Brief for
Appellant 29.
[
Footnote 8]
Subsequent to Bigelow's publication of the advertisement in
February, 1971, New York adopted Laws 1971, c. 725, effective July
1, 1971, amended by Laws 1972, c. 17, § 1, now codified as Art. 45
of the State's Public Health Law (Supp. 1974-1975). Section 4500
contains a legislative finding:
"Medical referral services, organized as profit-making
enterprises within this state, have been . . . in violation of the
standards of ethics and public policy applicable to the practice of
medicine and which would be violations of standards of professional
conduct if the acts were performed by physicians. . . . It is
hereby declared to be the public policy of this state . . . that
such profit-making medical referral service organizations be
declared to be invalid and unlawful in this state."
Section 4501(1) provides:
"No person, firm, partnership, association or corporation, or
agent or employee thereof, shall engage in for profit any business
or service which in whole or in part includes the referral or
recommendation of persons to a physician, hospital, health related
facility, or dispensary for any form of medical care or treatment
of any ailment or physical condition. The imposition of a fee or
charge for any such referral or recommendation shall create a
presumption that the business or service is engaged in for
profit."
A violation of the statute is a misdemeanor punishable by
imprisonment for not longer than one year or a fine of not more
than $5,000 or both. § 4502(1). Article 45 expressly is made
inapplicable to a nonprofit corporation exempt from federal income
taxation under § 501(c) of the Internal Revenue Code of 1954, 26
U.S.C. § 501(c). § 4503.
The 1971 statute has been upheld against constitutional
challenge.
S. P. S. Consultants, Inc. v.
Lefkowitz, 333 F.
Supp. 1373 (SDNY 1971).
[
Footnote 9]
In 1972, after Bigelow's prosecution was begun, Virginia adopted
Acts of Assembly 1972, c. 642, now codified as Va.Code Ann. §
18.1417.2 (Supp. 1975). This statute is similar to the New York
statute described in
n 8,
supra, and is directed at for-profit medical referrals
within Virginia. The statute prohibits engaging for profit
"in any business which in whole or in part includes the referral
or recommendation of persons to a physician, hospital,
health-related facility, or dispensary for any form of medical care
or treatment of any ailment or physical condition."
Acceptance of a fee for any such referral or recommendation
"shall create a presumption that the business is engaged in such
service for profit." Violation of the statute is a misdemeanor
punishable by imprisonment for not longer than one year or a fine
of not more than $5,000, or both.
By a 1973 amendment, Acts of Assembly 1973, c. 529, to its
statute dealing with unprofessional conduct by a member of the
medical or a related profession, Virginia prohibits advertising by
a physician. Specifically, Va.Code Ann. § 54-317 (1974) now
provides:
"Any practitioner of medicine . . . shall be considered guilty
of unprofessional conduct if he:"
"
* * * *"
"(13) Advertises to the general public directly or indirectly in
any manner his professional services, their costs, prices, fees,
credit terms or quality."
See also Va.Code Ann. §§ 54-278.1 and 54-317(4), (5),
and (6) (1974).
We, of course, have no occasion to comment here on whatever
constitutional issue, if any, may be raised with respect to these
statutes.
[
Footnote 10]
We have no occasion, therefore, to comment on decisions of lower
courts concerning regulation of advertising in readily
distinguishable fact situations. Wholly apart from the respective
rationales that may have been developed by the courts in those
cases, their results are not inconsistent with our holding here. In
those cases, there usually existed a clear relationship between the
advertising in question and an activity that the government was
legitimately regulating.
See, e.g., United States v. Bob
Lawrence Realty, Inc., 474 F.2d 115, 121 (CA5),
cert.
denied, 414 U.S. 826 (1973);
Rockville Reminder, Inc. v.
United States Postal Service, 480 F.2d 4 (CA2 1973);
United States v. Hunter, 459 F.2d 205 (CA4),
cert.
denied, 409 U. S. 934
(1972).
Nor need we comment here on the First Amendment ramifications of
legislative prohibitions of certain kinds of advertising in the
electronic media, where the "unique characteristics" of this form
of communication "make it especially subject to regulation in the
public interest."
Capital Broadcasting Co. v.
Mitchell, 333 F.
Supp. 582, 584 (DC 1971),
aff'd, 405 U.S. 1000 (1972).
See also Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d
1082 (1968),
cert. denied sub nom. Tobacco Institute, Inc. v.
FCC, 396 U.S. 842 (1969);
Columbia Broadcasting System,
Inc. v. Democratic National Committee, 412 U. S.
94 (1973).
Our decision also is in no way inconsistent with our holdings in
the Fourteenth Amendment cases that concern the regulation of
professional activity.
See North Dakota Pharmacy Bd. v Snyder's
Stores, 414 U. S. 156
(1973);
Head v. New Mexico Board, 374 U.
S. 424 (1963);
Williamson v. Lee Optical Co.,
348 U. S. 483
(1955);
Barsky v. Board of Regents, 347 U.
S. 442 (1954);
Semler v. Dental Examiners,
294 U. S. 608
(1935).
[
Footnote 11]
See also Adderley v. Florida, 385 U. S.
39,
385 U. S. 46-48
(1966);
Cox v. Louisiana, 379 U.
S. 536,
379 U. S. 554
(1965);
Poulos v. New Hampshire, 345 U.
S. 395,
345 U. S. 405
(1953);
Kunz v. New York, 340 U.
S. 290,
340 U. S.
293-294 (1951);
Cox v. New Hampshire,
312 U. S. 569,
312 U. S.
575-576 (1941).
[
Footnote 12]
See State v. Abortion Information Agency, Inc., 69
Misc.2d 825, 323 N.Y.S.2d 597 (1971);
see also Mitchell Family
Planning, Inc. v. City of Royal Oak, 335 F.
Supp. 738 (ED Mich.1972).
[
Footnote 13]
See Note, Freedom of Expression in a Commercial
Context, 78 Harv.L.Rev. 1191, 1197-1198 (1965); Developments in the
Law -- Deceptive Advertising, 80 Harv.L.Rev. 1005, 1010-1015
(1967).
[
Footnote 14]
We are not required to decide here what the First Amendment
consequences would be if the Virginia advertisement promoted an
activity in New York which was then illegal in New York. An example
would be an advertisement announcing the availability of narcotics
in New York City when the possession and sale of narcotics was
proscribed in the State of New York.
[
Footnote 15]
The State so indicated at oral argument. Tr. of Oral Arg. 37-38.
It, however, was never so applied. In the light of its "effective
repeal," as the State's counsel observed during the oral argument,
"[w]e will never know" how far, under appellee's theory, it might
have reached.
Id. at 38.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins,
dissenting.
The Court's opinion does not confront head-on the question which
this case poses, but makes contact with
Page 421 U. S. 830
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.
I am in agreement with the Court,
ante at
421 U. S.
817-818, that Virginia's statute cannot properly be
invalidated on grounds of overbreadth, [
Footnote 2/1] given that the sole prosecution which has
ever been brought under this now substantially altered statute is
that now in issue. "It is the law as applied that we review, not
the abstract, academic questions which it might raise in some more
doubtful case."
Saia v. New York, 334 U.
S. 558,
334 U. S. 571
(1948) (Jackson, J., dissenting).
Since the Court concludes, apparently from two lines of the
advertisement,
ante at
421 U. S. 812,
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,"
ante at
421 U. S. 822,
and since the and 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.
See
ante at
421 U. S. 825
n. 10. Although recognizing that "[a]dvertising, like all public
expression, may be subject to reasonable regulation that serves a
legitimate public interest,"
ante at
421 U. S. 826,
the Court, for reasons not entirely clear to me, concludes that
Virginia's interest is of "little, if any, weight."
Ante
at
421 U. S.
828.
Page 421 U. S. 831
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. It was apparently also so interpreted by the newspaper
which published it, which stated in apparent apology in its
following issue that the
"'Weekly collective has since learned that this abortion agency
. . . 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.'"
213 Va.191, 194, 191 S.E.2d 173, 175 (1972). Whatever slight
factual content the advertisement may contain, and
Page 421 U. S. 832
whatever expression of opinion may be laboriously drawn from it,
does not alter its predominantly commercial content.
"If that evasion were successful, every merchant who desires to
broadcast . . . need only append a civic appeal, or a moral
platitude, to achieve immunity from the law's command."
Valentine v. Chrestensen, 316 U. S.
52,
316 U. S. 55
(1942).
See, e.g., Ginzburg v. United States, 383 U.
S. 463,
383 U. S. 474
n. 17 (1966). I am unable to perceive any relationship between the
instant advertisement and that, for example, in issue in
New
York Times Co. v. Sullivan, 376 U. S. 254,
376 U. S. 292
(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, 413 U. S. 376
(1973). As the Court recognizes,
ante at
421 U. S.
819-821, 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,
ante at
421 U. S. 825
n. 10, 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.
See, e.g., Semler v. Dental Examiners,
294 U. S. 608,
294 U. S. 612
(1935);
Williamson v. Lee Optical Co., 348 U.
S. 483,
348 U. S.
490-491 (1955);
North Dakota Pharmacy Bd. v.
Snyder's Stores, 414 U. S. 156
(1973). And the interest asserted by the Supreme Court of Virginia
in the Virginia statute was the prevention of commercial
exploitation of those women who elect to have an abortion:
"It is clearly within the police power of the state to enact
reasonable measures to ensure that pregnant
Page 421 U. S. 833
women in Virginia who decide to have abortions come to their
decisions without the commercial advertising pressure usually
incidental to the sale of a box of soap powder. And the state is
rightfully interested in seeing that Virginia women who do decide
to have abortions obtain proper medical care and do not fall into
the hands of those interested only in financial gain, and not in
the welfare of the patient."
213 Va. at 196, 191 S.E.2d at 176.
The concern of the Virginia Supreme Court was not a purely
hypothetical one. As the majority notes,
ante at
421 U. S.
822-823, n. 8, although New York, at the time of this
advertisement, allowed profitmaking abortion referral agencies, it
soon thereafter passed legislation prohibiting commercial
advertisement of the type here in issue. The court in
S. P. S.
Consultants, Inc. v. Lefkowitz, 333
F. Supp. 1373, 1378 (SDNY 1971), quoted the author of that
legislation on the reasons for its passage:
"Because New York State has the most liberal abortion statute
within the Continental United States, thousands of women from all
over the country are coming into New York State. . . . [M]ost of
these women came here through referral agencies who advertise
nationally. These agencies, for a sizeable fee, make all abortion
arrangements for a patient. We also learned that certain hospitals
give discounts to these lucrative, profit-making organizations.
Thus, at the expense of desperate, frightened women, these agencies
are making a huge profit -- some, such a huge profit that our
Committee members were actually shocked."
See, e.g., State v. Mitchell, 66 Misc.2d 514, 321
N.Y.S.2d 756 (1971);
State v. Abortion Information Agency,
Inc., 69 Misc.2d 825, 323 N.Y.S.2d 597 (1971).
Page 421 U. S. 834
Without denying the power of either New York or Virginia to
prohibit advertising such as that in issue where both publication
of the advertised activity and the activity itself occur in the
same State, the Court instead focuses on the multistate nature of
this transaction, concluding that a State
"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."
Ante at
421 U. S.
824-825. And the Court goes so far as to suggest that it
is an open question whether a State may constitutionally prohibit
an advertisement containing an invitation or offer to engage in
activity which is criminal both in the State of publication and in
the proposed situs of the crime.
See ante at
421 U. S. 828
n. 14.
The source of this rigid territorial limitation on the power of
the States in our federal system to safeguard the health and
welfare of their citizens is not revealed. It is surely not to be
found in cases from this Court. [
Footnote 2/2]
Page 421 U. S. 835
Beginning. at least with our decision in
Delamater v. South
Dakota, 205 U. S. 93,
205 U. S. 100
(1907), we have consistently recognized that, irrespective of a
State's power to regulate extraterritorial commercial transactions
in which its citizens participate, it retains an independent power
to regulate the business of commercial solicitation and advertising
within its borders. Thus, for example, in
Head v. New Mexico
Board, 374 U. S. 424
(1963), we upheld the power of New Mexico to prohibit commercial
advertising by a New Mexico radio station of optometric services
provided in Texas. Mr. JUSTICE BRENNAN, concurring in that opinion,
noted that a contrary result might well produce
"a 'no-man's land' . . . in which there would be at best
selective policing of the various advertising abuses and excesses
which are now very extensively regulated by state law."
Id. at
374 U. S. 446.
See, e.g., Packer Corp. v. Utah, 285 U.
S. 105 (1932);
Breard v. Alexandria,
341 U. S. 622
(1951).
Were the Court's statements taken literally, they would presage
a standard of the lowest common denominator for commercial ethics
and business conduct. Securities issuers could circumvent the
established blue sky laws of States which had carefully drawn such
laws for the protection of their citizens by establishing as a
situs for transactions those States without such regulations, while
spreading offers throughout the country. Loan sharks might well
choose States with unregulated small loan industries, luring the
unwary with immune
Page 421 U. S. 836
commercial advertisements. And imagination would place the only
limit on the use of such a "no-man's land" together with
artificially created territorial contacts to bilk the public and
circumvent long-established state schemes of regulation.
Since the Court saves harmless from its present opinion our
prior cases in this area,
ante at
421 U. S. 825
n. 10, it may be fairly inferred that it does not intend the
results which might otherwise come from a literal reading of its
opinion. But solely on the facts before it, I think the Court today
simply errs in assessing Virginia's interest in its statute because
it does not focus on the impact of the practices in question on the
State.
Cf. Young v. Masci, 289 U.
S. 253 (1933). Although the commercial referral agency,
whose advertisement in Virginia was barred, was physically located
outside the State, this physical contact says little about
Virginia's concern for the touted practices. Virginia's interest in
this statute lies in preventing commercial exploitation of the
health needs of its citizens. So long as the statute bans
commercial advertising by publications within the State, the
extraterritorial location at which the services are actually
provided does not diminish that interest.
Since the statute in question is a "reasonable regulation that
serves a legitimate public interest,"
ante at
421 U. S. 826,
I would affirm the judgment of the Supreme Court of Virginia.
[
Footnote 2/1]
The Court,
ante at
421 U. S. 817,
states that the Virginia Supreme Court placed no limiting
interpretation on its statute and that it implied that the statute
might apply to doctors, husbands, and lecturers. The Court is in
error: the Virginia Supreme Court stated that it would not
interpret the statute to encompass such situations. 213 Va.191,
198, 191 S.E.2d 173, 177 (1972).
[
Footnote 2/2]
The Court,
ante at
421 U. S.
822-823, relies on
Huntington v. Attrill,
146 U. S. 657, 669
(1892), for its major premise that Virginia could not regulate the
relations of the advertiser with its residents, since these
occurred in New York. To the extent that the Court reads
Huntington to impose a rigid and unthinking territorial
limitation, whose constitutional source is unspecified, on the
power of the States to regulate conduct, it is plainly wrong. The
passage referred to by the Court in the
Huntington opinion
is dictum, and appears to be a statement of then-prevalent common
law rules, rather than a constitutional holding. And the attempt to
impose such a rigid limitation on the power of the States was first
rejected by Mr. Justice Holmes, writing for the Court in
Strassheim v. Daily, 221 U. S. 280,
221 U. S. 285
(1911):
"Acts done outside a jurisdiction, but intended to produce and
producing detrimental effects within it, justify a State in
punishing the cause of the harm as if he had been present at the
effect. . . ."
Mr. Justice McKenna in
Hyde v. United States,
225 U. S. 347,
225 U. S. 363
(1912), observed that "this must be so if we would fit the laws and
their administration to the acts of men and not be led away by mere
bookish theorick.'" See, e.g., Skiriotes v. Florida,
313 U. S. 69,
313 U. S. 74-75
(1941); Ford v. United States, 273 U.
S. 593, 273 U. S.
620-621 (1927). To the extent that the Court's
conclusion that Virginia has a negligible interest in its statute
proceeds from the assumption that the State was without power to
regulate the extraterritorial activities of the advertiser
involving Virginia residents, it is quite at war with our prior
cases.