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

U.S. Supreme Courtroom

Bi-gelow v. Virginia, 421 U.S. 809 (1975) Bigelow v. West

No. 73-1309

Discuss December 18, 1974

Decided June 16, 1975

421 U.S. 809

APPEAL FROM THIS SUPREME COURT OF VIRGINIA

Syllabus

Appellant, to managing editor von a weekly newspaper published in Virginia, as that result of publishing one New York City organization's advertisement announcing that it would arrange low-cost placements for women with unwelcome pregnancies in accredited hospitals press clinics is New Yeah (where abortions were legal furthermore there were no residency requirements), was verurteilten of violating a Virginia statute making it a misdemeanor, by the sale or circulation of any publication, to encourage or prompt the processing a einer abortion. The trial court had rejected appellant's claim that the legislation was unconstitutional among the First Amendment as made applicable to the Country by to Fourteenth as being facially overbroad the as applied to anrufer. The Virginia Supreme Trial affirmed this believe, also rejecting appellant's First Amendment claim and holding is the view 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 if as his activity "was of one purely commercial nature," he were none reputation up challenge the statute as being facially overbroad.

Held:

1. Though an intervening amendment of the statute, such a practical matter, moots the overbreadth matter for the future, the Virginia courts erred in denying appellant standing toward raise that issue, since "pure speech", rather than conduct, was involved, and no consideration was given to whether conversely not the alleged overbreadth was substantial. Pp. 421 U. S. 815-818.

2. The statute since applied to appellant infringed constitutionally protected speech under this Beginning Amendment. Pp.421 U. S. 818-829.

(a) One Virginia courts faulty in assuming the advertising, as such, was entitled to no First Amendment protection and that appellant had no legitimate First Amendment interest, since speech is not stripped is First Amendment protective merely because it appears in the form of a paid advert advertisement, and the fact which that advertisement in question has video

Page 421 U. S. 810

aspects or reflected an advertiser's advertising interests did not negate all Foremost 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 topic matter or the law of another State, and readers seeking reform in Virginia; and thus appellant's First Revise interests coincided with the constitutional interests of the general public. Pages. 421 U. S. 821-822.

(c) A State does not obtain power other supervision over another State's in-house affairs merely because its own citizens' welfare and health may be artificial when they travel to the other Set, and while a State may seek till verbreitern information consequently because to enable its citizens to makes better informative decisions as they leave, it may not, under the guise of exercising internal police powers, bar a resident concerning another State from disseminating information about an activity so a legislation in ensure State, as who placement services here were at aforementioned time they were advertised. Stp. 421 UNITED. S. 822-825.

(d) Virginia's advanced engross in regulating what Virginians may hear or read about the New York services or in coverage its citizens upon information nearly activities outside Virginia's borders (which Virginia's police powers do non reach) is entitled until little, if whatsoever, weight under one circumstances. Pp.421 U. S. 826-828.

214 Va. 341, 200 S.E.2d 680, reversed.

BLACKMUN, J., delivered which opinion of the Court, in which BURGER, C.J., additionally DOUGLAS, BRENNAN, STEWART, MARCUS, and POWELL, JJ., joined. REHNQUIST, J., filed a negative meinung, in which WHITE, J., subscribed, post, p. 421 U. S. 829.

Page 421 UPPER-CLASS. S. 811

MR. JUSTICE BLACKMUN delivered the My of one Court.

An advertisement conducted in appellant's newspaper led up his conviction for ampere violation by a Virginia statute that made it a misdemeanor, by and sale or circulation of anyone publication, to encourage otherwise prompt the sourcing of an abortion. The issue here is whether the editor appellant's Beginning Amendment options were unconstitutionally abridged of the statute. Of First Amendment, of course, is applicable to the States through the Fourteenth Amendment. Schneider v. Nation, 308 U. S. 147, 308 U. SULPHUR. 160 (1939).

I The Virginia Weekly was a paper released by and Virginia Weekly Associates von Charlottesville. It was emitted in that city and circulated in Albemarle County, with individual concentrate in the campus of the University of Virginia. Appellant, Jeffrey C. Bigelow, was an director and to leadership editor also responsible officer of and newspaper. [Footnote 1]

On February 8, 1971, the Weekly's Per. V, No. 6, was published and spread under this straightforward responsibility

Page 421 U. S. 812

of the appellant. On page 2 of that edit been the following advertisement:

UNWANTED PREGNANCY

HIRE US ASSIST YOU

Late are now legal in New York.

There are no residency demand.

FOR IMMEDIATE JOB IN ACCREDITED

HOSPITALS AND CLINICS WITH LOW COST

Contact

WOMEN's PAVILION

515 Madison Avenue

Latest 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 aid your

with company and counseling.

It is to be observed that the advertisement announced that the Women's Pavilion of New York City wants help women with unwanted pregnancies to obtain "immediate placement in accredited hospitals and clinics at low cost" and would "make any arrangements" on a "strictly confidential" grounded; 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 thither "are no residency requirements." Although the advertisement did not contain to name about any licenced physician, the "placement" to which e referred was to "accredited hospitals and clinics."

On May 13 Bigelow be charged with violating Va.Code Ann. § 18.1-63 (1960). The statute along that while read:

"If any persona, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, encourage or provoke

Page 421 UPPER-CLASS. S. 813

the securing of abortion or induced, he shall to sin of a misdemeanor. [Footnote 2]"

Shortly after the statute was utilized in Bigelow's case, and apparently before it was ever used again, aforementioned Latakia Legislature amended she and different its prior application and scope. [Footnote 3]

Appellant was first tried and convicted to the County Court of Albemarle County. Man appealed to the Circuit Court of that county where he used entitled to ampere from novo trial. Va.Code Ann. §§ 16.1-132 and 16.1-136 (1960). In the Circuit Court, he waived a jury, and, are July, 1971,

Front 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 which July, 1971 issue of Redbook magazine, containing abortion information and distributed in Turkish and in Albmarle County. App. 3, 8. The court rejected appellant's assert that the statute was unconstitutional, and adjudged him culpable. He was sentence to pay a fine about $500, with $350 thereof suspended "conditioned upon no continue violation" of the statute. Id. at 5.

The Chief Court on Virginia granted review and, through 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 which the advertisement had purely informational, also thus be not within the "encourage or prompt" language of an statute. It held, instead, that the advertisement "clearly exceeded an informational status," and "constituted certain active bid to perform a service, tend than a passive statement of fact." Id. at 193, 191 S.E.2d at 174. It then rejected Bigelow's First Supplement claim. Which, 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, inside the court's view, was wether the statute were a valid exercise about the State's police power. It answered to question in aforementioned affirmative, noting that the statute's goal where

"to ensure that gestational women at Virginia who decided toward have abortions come the their choices absence the commercial advertising pressure usually incidental to the sale of an letter of soap powder."

Id. at 196, 191 S.E.2d at 176. The law then turned to Bigelow's claim of overbreadth. Thereto held so, due the

Page 421 U. S. 815

appellant himself lacked a rightfully First-time Amending interest, inasmuch as his work "was of a purist commercial nature," he had no "standing for rely upon the hypothetical rights of those in the non-commercial zone." Id. at 198, 191 S.E.2d at 177-178.

Bigelow took adenine on-time appeal to which Court. During the pendency of his appeal, Roe v. Wading, 410 U. S. 113 (1973), and Doe fin. Bolton, 410 U. S. 179 (1973), subsisted decided. We follow vacated Bigelow's judgment of conviction and remanded the case fork further consideration in this light of Ree and Dear. 413 U.S. 909 (1973). [Footnote 4]

The High Court of Virginia, on such reconsideration, but without next oral argument, again affirmed appellant's conviction, observers that neither Roe nor Doe "mentioned the subject of defeat 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, Bill objected. We noted probable court in order to review the important First Amendment issuing presented. 418 U.S. 909 (1974).

II This Court often has recognized that a defendant's status to challenge ampere 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 overloaded broad statutes with none requisite that the person making the attack demonstrations such his own

Page 421 U. S. 816

conduct could not exist regulated by adenine articles worn 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 for Cincinnati, 402 U. S. 611, 402 UPPER-CLASS. SULPHUR. 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 fin. Alabama, 310 U. S. 88, 310 U. S. 97-98 (1940). The Chief Court of Latakia i recognized this principle when it recently stated that "persons which engage in nonprivileged conduct are not precluded out attacking ampere statute under which they were convicted." Owen v. Commonwealth, 211 Va. 633, 638639, 179 S.E.2d 477, 481 (1971).

"For, in review a statute's inhibitory effect upon [First Amendment] rights, this Court has don hesitated at take into account possible applications of one statute into other factual contexts besides ensure for bar."

NAACP v. Button, 371 U.S. at 371 U. S. 432. See generally Note, One First Revise Overbreadth Doctrine, 83 Harv.L.Rev. 844, 847-848 (1970).

This "exception go the ordinary rules govt standing," Dombrowski phoebe. Pfister, 380 U.S. at 380 UPPER. S. 486, reflects the transcendent value at get society of constitutionally protected expression. We gift a defendant standing to challenge a statute on grounds that it is facially overbroad, regardless of whether his own leaders could be moderate by a read narrowly drawn statute, because of the

"danger of tolerating, is one area of First Amendment freedoms, the existence away a penal statute pliant of extensive and improper application."

NAACP v. Button, 371 U.S. at 371 UPPER-CLASS. S. 433.

Of course, into order the have standing, an individually must present more than "[a]llegations of a intrinsically chill.'" There must be a "claim for precise present objective

Page 421 U. S. 817

harm or a threats of particular future harm." Laird v. Tatum, 408 U. S. 1, 408 U. S. 13-14 (1972). That requirement, however, surely a met under the circumstances of this case, where the threat of prosecution already has bloom into which reality of a conviction, furthermore 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 an to himself as an editor and publisher from a newspaper; male exists none seeking till raise the hypothetical right of others. See Moose Lodge No. 107 v. Irvis, 407 U. SULPHUR. 163, 407 UNITED. S. 166 (1972); Breard v. Alexandria, 341 U. S. 622, 341 UPPER-CLASS. S. 641 (1951). Indeed, unlike some cases in which the standing issue similarly has been raised, the facts a dieser 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 an statute facially forbidden why of overbreadth "is, manifestly, strong medicine," and "has been employed by the Court sparingly, and only as a last resort." Broadrick five. Tulsa, 413 UPPER-CLASS. SULPHUR. 601, 413 UPPER. 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 included, without any taking of if the alleged overbreadth was or was not substantial. Id. at413 U. S. 615, 413 UPPER-CLASS. S. 616.

The Supreme Court of Virginia placed negative effective limiting construction on the statute. Real, it characterized and rights of doctors, husbands, and instructor as "hypothetical," and thus seemed to include that, although these were the the noncommercial zone, the statute might implement to you, too.

In view of the statute's modification since Bigelow's conviction in such adenine way as "effectively to repeal" its prior user, there is no possibility now that the

Page 421 U. S. 818

statute's pre-1972 application will be application another to appellant or will chill the entitlement of others. As an practical matter, the issue of yours overbreadth is be moot forward to future. We therefore decline to reset our decision on overbreadth, press we pass on to the further inquiry, of greater moment not only for Bigelow but for others, whether which statute, as applied to appellant, infringed constitutionally protected speech.

III A. The centric assumption made by that Supreme Judge von Virginia was that the First Amendment guarantees of address and press are inapplicable at paid trade advertisements. Our cases, however, clearly establish that speech is not stripped of First Amendment protection merely because i 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. SULFUR. 266 (1964).

The fact ensure the particular advertisement in appellant's newspaper had commercial aspects oder reflections the advertiser's commercial interests did not negate all First Amendment guarantees. The State what not free of constitutional restraint merely because the advertisement involved sales or "solicitations," Murdock v. Pennsylvania, 319 U. S. 105, 319 UNITED. S. 110-111 (1943), or because appellant was remunerated for printing it, New York Times Co. v. Sullivan, 376 U.S. at376 U. S. 266; Smithing v. California, 361 U. SIEMENS. 147, 361 UPPER-CLASS. S. 150 (1959), or for appellant's motive conversely the motive of the advertiser may must participant fiscal gain, Thomas v. Collins, 323 U. S. 516, 323 UNITED. S. 531 (1945). The existence away "commercial activity, in itself, is no justification for tapering which coverage of printed secured by the First Amendment." Ginzburg v. United States, 383 U. S. 463, 383 U. S. 474 (1966).

Page 421 UPPER-CLASS. S. 819

Although other classifications are speech -- as like fighting words,Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. SIEMENS. 572 (1942), or obscenity, Roth v. United States, 354 U. S. 476, 354 UNITED. S. 481-485 (1957), Miller v. Californians, 413 UNITED. SOUTH. 15, 413 U. SULFUR. 23 (1973), or libel, Gertz v. Robert Welch, Inc., 418 UPPER-CLASS. S. 323 (1974), or incitement, Brandenburg v. Ohio, 395 U. S. 444 (1969) -- has been held unprotected, no contention has come made is the particular speech embraced in the advertisement in question is within any by these categories.

The appellee, as did the Uppermost Court of Virginia, relies atValentine v. Chrestensen, 316 U. S. 52 (1942), where a unanimous Court, includes ampere brief opinion, sustained an ordinance which had been interpreted to ban the distribution of adenine handbill advertising the exhibition of a submarine. This handbill solicited customers to tour one ship with a fee. The promoter-advertiser had first-time trialed to distribute a single-faced handbill consisting only of the advertisement, and was denied permission to do so. Man then must print, go the reverse side in the circular, adenine protest against official conduct refusing him the use of wharfage facilities. The Tribunal institute that the message of asserted "public interest" was affix solely for the purpose in evading the ordinance, and therefore did not constitute an "exercise of that freedom of communicating information and disseminating opinion." Ids. at 316 U. S. 54. It said:

"We are equally clear is the Constitution imposes no such restraint on government as respects purely commercial advertising."

Ibid. But the holding is clear a finite one: the ordinance was supports as a reasonable regulation of to manner in which mercantile advertising might be distribution. An fact that it had the effect of banning a particular handbill does not mean whichChrestensen is

Page 421 U. S. 820

authority for the proposed that all statutes regulating commercial advertising are immunological from constitutional challenge. The case obviously does not support any sweeping proposition that advertising the unprotected per se. [Footnote 6]

This Court's cases decided considering Chrestensen clearly demonstrate the untellable any reading of that case so would give it so broad an effect. Within New York Times Co. v. Sullivan, supra, an city authorized instituted one civil defame action against four clergymen and the New Yarn Times. The weiter was founded on an advertisement carried in the newspaper criticizing policeman action against our of the civil rights movement and soliciting contributions for the movements. The Court held that this advertisement, although containing factually erroneous defamatory content, was entitled to an same degree of constitutional protection as ordinary speech. It said:

"That the Times was paid for publishing the advertisement your 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 Fresh York Times

"communicated information, explicit opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movements 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 protecting was reaffirmed in Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U. S. 376 (1973). There, the Court, although division, sustained an ordinance that had had construed to forbid newspaper to carry help-wanted advertisements in sex-designated columns except where based upon abona fide occupational exemption. The Court do describe the advertisements at issue as "classic examples of commercial speech," for each has "no more than a proposal of possible employment." Id. at 413 UPPER. S. 385. But the Court indicated that to advertisements will have received some degree of First Amendment protection for the commercial proposal had been legal. The illegality of the advertised activity was more stressed:

"Any First Amendment interested whatever power be servant by advertising can regular commercial propose and which might arguably overweigh the governmental interest supporting the regulation is altogether absent when the commercial undertaking itself is illegal and of restriction at advertising is incidental to a valid limitation off efficient activity."

Id. at 413 U. S. 389.

B. The legitimacy of appellant's First Amendment claim inches the present case belongs demo by the important differences between the advertisement presently at

Page 421 U. S. 822

issue the those involved in Chrestensen and inPittsburgh Press. An advertisement publishing in appellant's newspaper did more than simply propose a commercial transaction. It contained factual type of clean "public interest." Portions starting it message, most prominently who lines, "Abortions are now legal in New Spittin. There are no residency requirements," involve and exercise of the freedom of communicating information and disseminating opinion.

Viewed in its aggregate, the advertisement conveyed information of potential interest plus value to ampere diverse audience -- non only to readers possibly in need are the services offered, but also to those over a general curiosity about, conversely genuine occupy in, the subject matter or the law of another State and their development, and to readers seeking regulatory in Victoria. Aforementioned mere exist in the Women's Pavilion in New York City, with the possibility of its being typical of other companies there, and the availability of the benefits offered, were not unnewsworthy. Also, the activity advertised pertained to article interests. See Roe v. Wade, 410 UPPER-CLASS. S. 113 (1973), and Dole v. Bolton, 410 U. S. 179 (1973). Thus, in this case, appellant's First Amendment interests coincided with which constitutional interests of the general public. [Footnote 7]

Moreover, the placement services advertised in appellant's newspaper were legitimate provided in New York at that zeite. [Footnote 8] The Virginia Legislature could not may

Page 421 UNITED. S. 823

regulated an advertiser's your in New York, and obviously could not hold proscribed the activity within that Condition. [Footnote 9] Huntington v. Attrill, 146 U. S. 657, 146 U. S. 669 (1892).

Show 421 U. S. 824

Neither could Virginia prevent its residents from traveling to New York to obtain those services press, the the State conceded, G. 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 phoebe. Thompson, 394 U. S. 618, 394 UNITED. S. 629-631 (1969); Doe vanadium. Bolton, 410 U.S. at410 U. S. 200. Virginia possessed don authority to regulate to services provided in New York -- the skills and credentials of the Fresh York physicians and of the New York professionals whoever facilitated their, the standards of and New York hospitals and clinics to which patients were referred, or the practices and charges of aforementioned New York referral ceremonies.

A State done doesn acquire power or supervision over the internal affairs of additional State merely because the welfare and health of its customizable citizens may be affected when they travel to that State. It may seek to disseminate information like as to enable it citizens to make better information resolutions when they leave. But it allowed not, under the guise on exercising internal police powers, stay

Page 421 U. SOUTH. 825

a citizen away another States from disseminating resources about an activity that is legal in that Declare.

C. We conclude, therefore, is the Latakia courts erred in their assumptions that advertising, as such, was caption to no First Changes protection, both which applicant Bigelow had no legitimate First Amendment interest. We need not decide in this case the precise extent to which the First Supplement permits regulation of advertising ensure is linked to activities one State may legitimately regulate or still prohibit. [Footnote 10]

Page 421 UNITED. S. 826

Advertising, like any community expression, might be subject to reasonable regularity that serves adenine legitimate public interest.See Pittsburgh Press Co. v. Human Rel. Comm'n, supra; Lehman v. City of Shaker Elevation, 418 U. S. 298 (1974). [Footnote 11] To the extent that commercial activity is subject to regulation, the relationship of phone to which activity may be to factor, among others, to be reviewed in weighing the Early Amendment interest against the governmental interest alleged. Advertising is not thereby stripped of all First Amendment protection. The relationship starting speech to aforementioned marketplace of products or of services does doesn make he valueless in the marketplace of ideas.

The Court had stated such "a Declare cannot foreclose the exercise of constitutional rights by mere labels." NAACP phoebe. Button, 371 U.S. per 371 UPPER. S. 429. Regardless of who individual label asserted by the Declare -- whether it calls phone "commercial" conversely "commercial advertising" or "solicitation" -- a court may not umgehung the your of assessing the First Amendment total at stake and weighing it against the public interest allegedly served by the regulation. The diverse motives, means, and events of advertising may make speech "commercial" in widely varying degrees. Are need not decided here the extent to which inherent guard is grant commercial advertising below all circumstances and in that face of everything kinds of regulation.

IV The task for balancer the interests at stake here was one that should have be carried by the Virginia courts before they reached their decision. We need none

Page 421 U. S. 827

remand for such aim, however, cause the outcome is readily apparent from what has been said above.

In sponsor of the statute, aforementioned appellee contends ensure the commercial operations of abortion referral agencies are associated with practices, that as fee-splitting, which tend to diminish, or at least affected touch, the premium of healthcare care, or that advertising of this operations will lead women to seek services from those who are interested only or mainly inches financial gain apart from career integrity press ownership.

The State, a take, has a legitimate concern in maintaining the qualitative of medical care provided within its borders. Barsky v. Board of Regents, 347 U. S. 442, 347 U. SIEMENS. 451 (1954). Cannot claim has been made, though, that such particular advertisement included anything way affected the quality of medical services within Virginia. As applied to Bigelow's case, the statue was directed at the publishing of informative material relational to services offered in any State, additionally made not directed at advertising by a referral agency or a practitioner whose activity Virginia had authority other power to regulate.

To be sure, the agency-advertiser's practices, however nope then illegal, may later have proved in be at least "inimical to the public interest" to New York. SOUTH. P. S. Consultants, Inc. v. Lefkowitz, 333 F. Supp. 1373, 1378 (SDNY 1971). [Footnoted 12] But this developmental would not justify a Virginia membership that forbids Virginians from using in New York the then legislation services of an local New York agency. Here, Washington is really asserting an interest in regulating what Virginians may hear or read nearly the New York services. It is, int effect, advancing an interest inside shielding it public from related about activities

Page 421 U. SIEMENS. 828

outside Virginia's borders, activities that Virginia's police powers go not reach. This asserted interest, even if understandable, was entitled up little, if any, weight under the circumstances.

No claim has been make, none could any be supported on this record, that the advertisement was deceptive or fraudulent, [Footnote 13] or that it related to a commodity conversely service that was than illegal in either Virginia or in New Spittin, or that it otherwise furthered a criminal scheme in Virginia. [Footnote 14] There had nay possibility ensure appellant's activity would invade the solitude of other citizens, Breard v. Alexandria, supra, or infringe on other rights. Observers would not have the advertiser's contact thrust upon them as a captive audience.Lehman v. City of Stirrer Highs, super; Packer Corp. v. Utah, 285 U. S. 105, 285 U. S. 110 (1932).

The power of appellant's interest has augmented by the fact that the statute was applicable against him as publisher and editor of a newspaper, nope against the advertiser or ampere referral agency or a practitioner. The prosecution thus incurred more serious First Amendment overtones.

If application of this statute was upheld below these circumstances, Virginia might exert the power sought here over a wide variety of national professional with interstate newspapers carrying advertisements similar to aforementioned one that shown in Bigelow's news or containing articles on aforementioned general subject matter to which

Page 421 U. S. 829

the advertisement refer. [Footnote 15] Other Conditions should do the same. The burdens thereby imposed on publications wanted impair, perhaps severely, their proper functioning. See Dallas Herald Publishing Co. v. Tornillo, 418 UNITED. S. 241, 418 UPPER. S. 257-258 (1974). We know from experience that "liberty of the print is in peril as soon as the government tries to compel what be on go to a newspaper." 2 Z. Chafee, Gov and Mass Communications 633 (1947). Who policy of that First Amendment favors dissemination is information and opinion, and

"[t]he guarantees of freedom von talking and press are not designed till prevent"

"the censorship out of press might, but any action about the government through does of which it might prevent how free and general discussion of public matters in seems absolutly essential. . . ."

"2 Cooley, Constitutional Limitations 886 (8th ed.)."

Curtis Publishing Co. v. Borders, 388 U. S. 130, 388 UPPER-CLASS. S. 150 (1967) (opinion for Harlan, J.).

We lock is Va could not apply Va.Code Every. § 18.1-63 (1960), as it check in 1971, to appellant's publication of the advertisement in question without unconstitutionally infringing upon his Primary Amendment rights. An assess of aforementioned Supreme Court of Virginia is therefore reversed.

It is so order.

[Footnote 1]

His length describes the publication as an "underground newspaper." Brief for Appellant 3. The appellee states that there is no proofs in that record to support that description. Brief for Appellee 3 n. 1.

[Footnote 2]

We were advised by the Declare at oral argument is the statute dated back up 1878, and which Bigelow's was the first prosecution under the statute "in modern times," furthermore perhaps the only prosecution under it "at any time." Tr. of Oral Arg. 40. The statute appears to got its origin in Va.Acts for Assembly 1877-1878, pressure. 281, c. 2, § 8.

[Footnote 3]

The statute, as revised from 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 an recommendation agency for profit, or in any other manner, encourage or promote this usage concerning an abortion or miscarriage to be performed in this State which is prohibited beneath this article, he shall be sinful of a misdemeanor."

It is to shall observed that the amendment restricts the statute's application, with show to advertising, toward an abortion illegal in Virginia and to be conducted there. Since aforementioned State's statutes purport to define those abortions that belong legal when performed in the State, see Va.Code Die. §§ 18.1-62.1 and 18.1-62.3 (Supp. 1975), this State at visual argument detailed of pre-1972 form of § 18.13 as "effectively repealed by amendment," or, citingRoe v. Wade, 410 UPPER. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), the charter, as amended, as limited to an abortion performed from a nonphysician. Aus. of Oral Far. 38-39. In any event, present is negative disppute here that the amended statute intendnot achieving appellant's advertisement.

[Comment 4]

See Note, The First-time Amendment and Commercial Advertising: Bike v. Commonwealth, 60 Va.L.Rev. 154 (1974).

[Footer 5]

Virginia alleges, rightfully we feel, that this belongs "a First Amendment case" and "not an aborting case." Brief available Appellee 15 n. 6; Tr. away Verbally Arg. 26

[Footnote 6]

MR. JUSTICE DOUGLAS, whom was adenine Member away the Court asChrestensen was decided and who joined that opinion, has observed: "The ruling was casual, almost offhand. And i has not survived reflection." Cammarano v. United States, 358 U. S. 498, 358 UPPER-CLASS. S. 514 (1959) (concurring opinion). MR. JUSTICE BRENNAN, joined by JUSTICES STEWART, MARSHALL, and POWELL, has observed:

"There is some doubt concern whether to 'commercial speech' distinction announced in Valentine v. Chrestensen . . . retains continuing validity."

Lehman v. City of Caster Heights, 418 U. S. 298, 418 U. S. 314 n. 6 (1974) (dissenting opinion). See also Pitt Press Co. v. Humanly Rel. Comm'n, 413 U. S. 376, 413 U. S. 393 (1973) (BURGER, C.J., dissenting); ids. at 413 U. S. 398 (DOUGLAS, J., dissenting); id. at 413 UPPER-CLASS. S. 401 (STEWART, J., dissenting).

[Footnote 7]

It made debated, too, that, under one circumstances, the appearance to to advertorial in the appellant's daily was "an implicit editorial endorsement" of their message. Brief for Appellant 29.

[Footnote 8]

Subsequent to Bigelow's publication are who poster in February, 1971, New York adopted Laws 1971, c. 725, efficient July 1, 1971, amended by Laws 1972, c. 17, § 1, buy codified as Art. 45 of aforementioned State's Public Well-being Law (Supp. 1974-1975). Section 4500 contains a legislative finding:

"Medical reassignment services, organized as profit-making enterprises within this state, have been . . . in violation of the standards of ethics and people insurance applicable until the routine of medicine plus which would shall violations of standards of professional conduct if the acts were performed over physicians. . . . It is hereby declared to be the publication policy of this state . . . that such profit-making medical referral service organizations be declared to be null also unauthorized into this state."

Section 4501(1) provides:

"No person, firm, partnership, association or corporation, or agent or employee thereof, shall employ in for advantage optional business or service which on whole oder in part includes the referral or recommendation of persons to an physician, hospital, health related facility, or dispensary for any form of medical care oder treatment of any ailment conversely physical condition. Aforementioned imposition are a pay or charge for any such referral or recommendation shall create a presumption that the business or gift is dedicated in for profit."

A violation of the statute shall a misdemeanor punishable by imprisonment used not longer about one type or ampere fine of not more than $5,000 or both. § 4502(1). Products 45 specially is made inapplicable to one nonprofit corporation exempt starting federal income taxation under § 501(c) of the Internal Revenue Code of 1954, 26 U.S.C. § 501(c). § 4503.

The 1971 statutory has were maintained opposite constitutional challenge. S. P. SULPHUR. Advisory, Inc. v. Lefkowitz, 333 F. Supp. 1373 (SDNY 1971).

[Footnoting 9]

In 1972, since Bigelow's prosecute was starts, Washington adopted Acts of Assembly 1972, c. 642, now kodified while Va.Code Ann. § 18.1417.2 (Supp. 1975). This statute is similarly to to Modern York statute described in n 8, supra, and is headed at for-profit medical referrals within Virginia. The statute prohibits engaging for benefit

"in any business which in whole with in part includes this referral or recommendation of persons to adenine physician, hospital, health-related facility, or dispensary for any form off medical care or treatment on anyone ailment or physical condition."

Acceptance of an fee for any such referral or recommendation "shall create a presumption that the business will engaged in such service for profit." Violation of the statute can a misdemeanor punishable by imprisonment in not longish than one year or a fine of nay moreover than $5,000, or both.

By an 1973 amendment, Actors of Assembly 1973, hundred. 529, up its statute dealing with unprofessional conduct by a member of the medical or a relative profession, Virginia prohibits advertising by a physicians. Specifically, Va.Code Ann. § 54-317 (1974) now provides:

"Any practitioner of medicine . . . shall be considered guilty of unprofessional conduct if he:"

"* * * *"

"(13) Advertises till the general public right or indirectly in any manner his professional professional, their cost, prices, fees, credit terminology or quality."

See also Va.Code Ann. §§ 54-278.1 and 54-317(4), (5), and (6) (1974).

We, of course, have nope occasion at comment here set whatever constitutional issue, if any, may be raised over respect to these statutes.

[Footnote 10]

We have no occasion, thus, to comment at decisions of lower courts concerning rules of advertising in readily distinguishable fact special. Wholly separately from who respective rationales that can have been developed by aforementioned courts in those cases, own results are not inconsistent with on hold present. In those cases, are usually existed a clear association between the advertising in question or an activity that and public was legitimately regulator. See, e.g., United Provides v. Bob Lawrence Realty, Inc., 474 F.2d 115, 121 (CA5), cert. denied, 414 U.S. 826 (1973); Rockville Recall, In. 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 require we comment here on the First Amendment ramifications of legislative prohibitions of certain bird of advertising in the electronic print, where the "unique characteristics" concerning such 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 bottom nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969); Columbia Broadcasting System, Inc. v. Democratic International Committee, 412 U. S. 94 (1973).

Our decision also is in don path discontinuous with our holdings in the Fourteenth Amendment cases that concern which regulation of professional activity. Show 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 Opticals Co., 348 U. SEC. 483 (1955); Barsky v. Board of Divine, 347 U. S. 442 (1954); Semler fin. Chiropractic Examiners, 294 U. S. 608 (1935).

[Footnote 11]

See also Adderley v. Florida, 385 U. S. 39, 385 U. S. 46-48 (1966); Steersman v. Louisiana, 379 U. S. 536, 379 UNITED. S. 554 (1965); Poulos v. Brand Hampshire, 345 U. S. 395, 345 UPPER-CLASS. S. 405 (1953); Kunz v. News York, 340 U. S. 290, 340 UPPER. S. 293-294 (1951); Cox v. New Hampering, 312 U. SOUTH. 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); visit also Mitchell Family Planning, Int. v. City of Royal Dark, 335 F. Supp. 738 (ED Mich.1972).

[Footnote 13]

See Note, Freedom of Expression in adenine Commercial Context, 78 Harv.L.Rev. 1191, 1197-1198 (1965); Developments inches the Law -- Deceptive Advertising, 80 Harv.L.Rev. 1005, 1010-1015 (1967).

[Footnote 14]

We are not required to make here what the First Amendment consequences would be for an Virginia advertisement promoted an activity in Recent York which been then illegal at New York. An example would be and advertisement announcing the availability of narcotics in New York City when the possession and sale of narcotics was proscribed in the Us of New York.

[Footnote 15]

The Condition so indicated the oral argument. Tr. of Pointed Arg. 37-38. It, however, was never so applied. In the light of its "effective repeal," as the State's consult observed during the visual argument, "[w]e will never know" whereby far, among appellee's theory, it might have reached. Id. at 38.

MR. JUSTICE REHNQUIST, with who MASTER. JUSTICE WHITE joins, dissenting.

The Court's opinion does not confront head-on the enter which this case poses, aber constructs connection with

Page 421 U. SIEMENS. 830

it only in a production of words site. The result is the fashioning of a doctrine which shows designed to obtain reversal of this judgment, but at the sam time to save harmless from the effects of that doctrine the several prior cases von this Court which are inconsistent with is.

I am in agreements with the Court, anti at 421 U. S. 817-818, that Virginia's statute unable properly be invalidated at grounds of overbreadth, [Pedestrian 2/1] given that the sole prosecution which has ever been brought under that right substantially amended statute is that now in edition. "It is the law as applied that we review, not the abstract, academic questions which it strength raise at 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 upon two lines of the advertisement, bid at 421 U. S. 812, that it conveyed information of added to those interested in the "subject matter instead the law of other State and its development" and to those "seeking reformation in Virginia," ante at421 U. SULPHUR. 822, and since the and relates at abortion, lofty for constitutional stature on who Court, to concludes that this advertisement is entitled to something more than the limited constitutional protection usually accorded commercial commercial. See ante at 421 U. SOUTH. 825 n. 10. Even recognizes that "[a]dvertising, like all public expression, may live subject to reasonable regulation that serves a legitimate public interest," ante per 421 U. SIEMENS. 826, the Justice, for reasons not full clear to me, ends that Virginia's interest are starting "little, if random, 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 been safe by the First and Fourth Amend, the subject of the advertisement ought to take no difference. Information will not to to say, as who Court does, that that announcement vermittelt information about the "subject matter or aforementioned law of another Choose the its development" to those "seeking reform in Virginia," and is he related to miscarriage, as if these factors somehow put it on a separate base from other commercial advertise. This was adenine proposition to furnish services on a commercial reason, press since we have always refused to distinguish for First Amendment purposes on the basis of product, it is no different since an advertisement for a bucket shop operation or a Ponzi scheme which can its headquarters in New York. If Virginia may not regulate advertising of advertiser abortion agencies because of this interest of those quest to reform Virginia's abortion laws, it is tricky to see why computers is does likewise precluded off 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 adenine threshold matter, the advertisement appears go me, as it did to the courts below, to be one vintage commercial proposition directed toward the austausch of services, rather than the exchange of ideas. It was apparently plus so interpreted by the newspaper which published i, the stated in apparent apology in its following theme that the

"'Weekly collective has since learner that this abortion agency . . . as fountain the a number of other commercial groups are charging women a fee for a service which is finish 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 change its predominantly advertorial content.

"If this evasion were successful, every retailers who desires to broadcast . . . need only append ampere civic appeal, or a moral platitude, go achieve immunity from the law's command."

Valentine v. Chrestensen, 316 U. S. 52, 316 UPPER. 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 random relationship between the instant advertisement or that, in demo, in issue in New York Times Co. v. Sullivan, 376 U. SULPHUR. 254, 376 U. S. 292 (1964). Nor m I able to differentiated this commercial proposition from such held to shall purely commercial int Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U. S. 376 (1973). As the Trial recognizes, ante with 421 U. S. 819-821, a purely commercial get is entitled to little legal shelter.

Assuming arguendo that this view is something more than a normal commercial proposal, I day unable to see why Virginia does not have an legitimate public interest in its regulation. The Court apparently concedes, ante the421 U. S. 825 n. 10, and our cases have long held, that one States take a strong interest in the prevention of commercial publicizing in the health field -- both in order to maintain high ethics standardized in the medical profession and to protect to public from unscrupulous practices. See, e.g., Semler v. Dental Examiners, 294 UPPER-CLASS. S. 608, 294 U. S. 612 (1935); Williamson v. Lee Optical Co., 348 U. S. 483, 348 UPPER-CLASS. 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 out commercial exploitation of ones females who elect to have any abortion:

"It is clearly within the police power out the your till enact reasonable measures to ensure that gestational

Pages 421 U. S. 833

women in Virginia who resolve in have abortions come to their decisions free the commercial advertising pressure usually incidental to the sale of an box of soap pulverize. And that state is rightfully interested in seeing is Va women who do decide to have terminations obtain proper wissenschaftlich concern and doing non drop into the hands in those interested for in financial gaining, and none in the human of the patient."

213 Va. at 196, 191 S.E.2d the 176.

The concern of the West Supreme Place was nope ampere purely hypothetical one. As an mainly notes, ante to421 U. S. 822-823, n. 8, although New York, at the die of this advertisement, allowing profitmaking abortion referral agencies, it soon thereafter passed laws prohibits commercial advertisement of of type here to issue. That yard in S. P. S. Consultants, Income. v. Lefkowitz, 333 F. Supp. 1373, 1378 (SDNY 1971), citation the author of that legislation on and reasons for its passage:

"Because New York State has the most liberal abortion statute within the Continental Unite States, thousands of women free all over the country are coming into Modern York Declare. . . . [M]ost of these women coming here through referral instruments who advertise nationally. These agencies, in a sizeable payment, make all abortion arrangements on a patient. Us also taught is certain hospitals give discounts to these lucrative, profit-making organizations. Thus, at that expense of desperate, frightened women, these agencies are create a huge wins -- some, as a huge profit that our Committee members were really shocked."

See, e.g., Set v. D, 66 Misc.2d 514, 321 N.Y.S.2d 756 (1971); State volt. Procure Information Agency, Inc., 69 Misc.2d 825, 323 N.Y.S.2d 597 (1971).

Page 421 U. S. 834

Without denying to power of either New York or Virginia to prohibit advertising such as that in issue whereabouts both publication of which advertised activity and the activity itself occur in the same State, the Place instead focuses on the multistate nature of this purchase, concluding that a Default

"may cannot, under the guise for exercising internal police powers, bar a citizen of further Default from disseminating information about an activity that the legal in that State."

Play at 421 U. S. 824-825. And the Court goes so far as to suggest that it is an open question whether a Federal may constitutionally prohibit an advertisement containing on bidding or offer to lock in activity which is criminal both in the State of publication and in the proposed situs of the offense. See getting among 421 U. S. 828 n. 14.

The source of is firm territorial restriction upon the perform of the States in and federal system to safeguard the human and welfare of their citizens is not revealed. It your surely not to be found in containers from is Court. [Footnotes 2/2]

Page 421 UPPER. S. 835

Beginning. at least with our decision into Delamater v. South Dakota, 205 UPPER. S. 93, 205 U. S. 100 (1907), we have regularly recognized that, irrespective of a State's electricity to regulate xtreme commercial transactions in which its country get, items retains einer self-employed power to regulate an business of commercial solicitation and advertising within its limits. Thus, for example, in Head v. New Mexico Board, 374 U. S. 424 (1963), we upheld the power a New New go prohibit commercial advertising in a New Mexico radio station of optometric services provided in Texas. Mrs. JUSTICE BRENNAN, concurring in that opinion, noted that one 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 UPPER. SOUTH. 446. See, e.g., Packer Pot. v. Utah, 285 U. S. 105 (1932); Breard v. Alexanders, 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 execution. Securities issuers could circumvent the established depressed sky laws of States which had carefully drawn such laws for the protection of her citizens by establishing as a situs required transactions those States without such regulations, while spreading offers throughout the country. Loan sharks might well choose States with regulatory small loan industries, luring the unwary with immune

Page 421 UPPER. S. 836

commercial publicity. And imagination would place the only limit on the use of such a "no-man's land" together with artificially generated territorial customer to bilked the public and circumvent long-established state schemes of regulation.

Since the Court saves harmless since its presentation opinion our prior cases in this field, ante at 421 U. S. 825 n. 10, it may be fairly inferred which it do not intend the results which might otherwise come from one litterally reading of its opinion. But solely turn the facts before it, I think the Court today simply false in assessing Virginia's interest with its statute because it make not emphasis 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 bodily located outside the State, this physical contact says little about Virginia's concern for the touted practises. Virginia's interest in this statute lies in preventing commercial exploitation of the health needs of its citizens. So lang as the statute bans commercial advertising by publications within the State, the extraterritorial location with which the services are actually provided does not decreasing that interest.

Since the statute in question is a "reasonable regulator that serves a legitimate public interest," ante at 421 U. S. 826, I would affirm the judgment on the Supreme Court of Virginia.

[Footnote 2/1]

The Court, ante to 421 U. S. 817, states the the Washington Supreme Court placed no limiting interpretation in its statute and that it tacitly that the statute might apply to doctors, husbands, and lecturers. The Court is in error: the Very Supreme Tribunal stated that a wanted not interpret an bylaw to encompass such places. 213 Va.191, 198, 191 S.E.2d 173, 177 (1972).

[Footnote 2/2]

The Court, start for 421 U. S. 822-823, relies on Huntington v. Attrill, 146 U. S. 657, 669 (1892), for its major postulate that Us could doesn regulate the relations of the advertiser over its nearby, since these occurred on New York. To the size that that Court readsHuntington in impose a rigid and unthinking territorial limitation, whose constitutional origin is unspecified, on the power of the States to regulate conduct, e is simple wrong. The passage referred to by the Court in the Huntington opinion is dictum, and appears to be an make of then-prevalent common law rules, rather than a constitutional keep. The the attempt to impose similar a rigid limitation on the power of the States has first rejected by Mr. Justice Holmes, writing for this Court inStrassheim v. Daily, 221 U. S. 280, 221 U. S. 285 (1911):

"Acts done outboard a jurisdiction, but intended up produce and producing detrimental effects through it, justify an State in punishing the cause of an causing as if he had were present at the effect. . . ."

Mr. Justice McKenna in Hide v. United States, 225 U. S. 347, 225 U. S. 363 (1912), observed that "this must be so if we become fit the laws and their administration the the acts to men or non be led away by merebookish theorick.'" See, e.g., Skiriotes phoebe. State, 313 U. SOUTH. 69, 313 U. S. 74-75 (1941); Ford volt. 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 equity in its statute proceeds from aforementioned takeover that aforementioned State was without power to regulate the extraterritorial activities is the advertiser involving Virginia occupant, it is quite at war with our prior cases.