Bigelow v. Virginia

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 find abortion services. At the time, a Virginia statute was in effect making it a misdemeanor 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 unconstitutional on 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 of the 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 the First Amendment. It also held that the statute was a proper consumer protection measure. In so ruling, the Virginia Supreme Court relied on a precedent it had 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 of recent 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 that serve a legitimate public interest. To the extent that commercial activity is subject to regulation, the relationship of speech to that activity may be one factor, among others, to be considered in weighing the First Amendment interest against the governmental interest alleged. Advertising is not thereby stripped of all First Amendment protection. The relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas . . .

In other words, an advertisement may have something of value to offer beyond its use as an attempt to get somebody to buy 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 every right 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."