Bigelow v. Virginia

Appellant
Jeffrey C. Bigelow
Appellee
Commonwealth of Virginia
Appellant's Claim
That the Virginia statute banning abortion advertising under which he was convicted was an unconstitutional violation of his First Amendment rights.
Chief Lawyers for Appellant
Melvin L. Wulf and John C. Lowe
Chief Lawyer for Appellee
D. Patrick Lacy, Jr.
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Warren E.Burger, William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., PotterStewart
Justices Dissenting
William H. Rehnquist, Byron R. White
Place
Washington, D.C.
Date of Decision
16 June 1975
Decision
Reversed Virginia Supreme Court decision upholding Bigelow's conviction for running an abortion advertisement in the newspaper he managed.
Significance
In Bigelow v. Virginia, the U.S. Supreme Court ruled that advertisements for abortion services and clinics were forms of expression protected by the First Amendment guarantee of freedom of speech and press. Prior to this ruling, which came two years after Roe v. Wade, (1973) it was not uncommon for states to restrict such advertising, even if it was for services in another state.
Jeffrey C. Bigelow was managing editor of the Virginia Weekly, a newspaper based in Charlottesville. In February of 1971 the paper ran an advertisement for the Women's Pavilion, a New York organization that helped women findabortion services. At the time, a Virginia statute was in effect making it amisdemeanor to "encourage or prompt the procuring of abortion." As the ad itself stated, abortions were legal in New York at the time, and there was no residency requirement for obtaining one in that state. Bigelow was tried and convicted for violating the state law.
Appealing the conviction, Bigelow's attorneys argued that the Virginia statute was a violation of his First Amendment right to freedom of the press. The law was also, according to Bigelow, overbroad, and therefore unconstitutionalon those grounds as well. It is interesting to note that shortly after Bigelow's conviction, but long before it was overturned, the law was changed to apply only to abortions performed illegally in Virginia. Therefore the issue ofthe statute's overbroadness became moot.
The Virginia Supreme Court upheld Bigelow's conviction, ruling that because his activity "was of a purely commercial nature," it was not protected by theFirst Amendment. It also held that the statute was a proper consumer protection measure. In so ruling, the Virginia Supreme Court relied on a precedent ithad set 25 years earlier that distinguished between protected speech and "commercial speech." First outlined in 1942 in the case Valentine v. Chrestensen, the Court's prevailing attitude was that commercial speech did not enjoy First Amendment protection because it had more to do with economic inducement than with the free and open exchange of ideas.
In considering Bigelow, the U.S. Supreme Court began to rethink its position on the distinction between protected and commercial speech in light ofrecent developments. A major factor was the general expansion of First Amendment freedoms that had taken place during the 1970s. More important, however,was the fact that the Court had recently decided Roe v. Wade, (1973)which made abortion a constitutionally protected right. With Roe v. Wade still fresh in the collective American mind, the Court ruled that since the advertisement in the Virginia Weekly conveyed truthful information about a matter of significant public interest, it merited First Amendment protection. In a 7-2 vote the Court overturned Bigelow's conviction and invalidated the Virginia law on which he was tried.
Writing for the majority, Justice Blackmun noted that:

Advertising, like all public expression, may be subject to reasonable regulations thatserve a legitimate public interest. To the extent that commercial activity issubject 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 . . .

In other words, an advertisement may havesomething of value to offer beyond its use as an attempt to get somebody tobuy something. If it does, then it is entitled to First Amendment protection.
Dissenting, Justices Rehnquist and White did not subscribe to this reasoning.To them, commercial speech was commercial speech, regardless of whether it was about abortions or cattle feed. The state of Virginia therefore had everyright to regulate the advertisement. In his dissenting opinion, Rehnquist wrote that the ad in the Weekly was "a classic commercial proposition directed towards the exchange of services rather than the exchange of ideas." Under earlier rulings, the ad was therefore entitled only to "the limited constitutional protection traditionally accorded commercial advertising."
Impact
Bigelow was an important link in the chain of decisions that broadenedthe constitutional protection afforded commercial speech. The following year, the Court formalized that protection in Virginia State Board of Pharmacyv. Virginia Citizens Consumer Council (1976). The concepts addressed inBigelow were extended further by Carey v. Population Services International (1997), in which the Court struck down a New York law prohibiting the advertising and sale of contraceptives to minors. As a result of theseand other subsequent decisions, commercial speech now occupies a special niche as a "quasi-protected" form of expression.
Related Cases

• Valentine v. Chrestensen, 316 U.S. 52 (1942).
  
• Roe v. Wade, 413 U.S. 113 (1973).
  
• Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
  
• Carey v. Population Services International, 431 U.S. 678 (1977).