LOCATION: Virginia Weekly Newspaper
DOCKET NO.: 73-1309
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of Virginia
CITATION: 421 US 809 (1975)
ARGUED: Dec 18, 1974
DECIDED: Jun 16, 1975
D. Patrick Lacy, Jr. - Argued the cause for the appellee
John C. Lowe - for appellant
John C. Lowe - Argued the cause for the appellant
Melvin L. Wulf - Argued the cause for the appellant
Facts of the case
A Virginia statute made it a misdemeanor for "any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, [from encouraging] or [prompting] the procuring of abortion or miscarriage." Bigelow, director and managing editor of the Virginia Weekly, was convicted under this law when his newspaper ran an advertisement for an organization which referred women to clinics and hospitals for abortions.
Did the Virginia law violate the First and Fourteenth Amendments of the Constitution?
Media for Bigelow v. VirginiaAudio Transcription for Oral Argument - December 18, 1974 in Bigelow v. Virginia
Audio Transcription for Opinion Announcement - June 16, 1975 in Bigelow v. Virginia
Warren E. Burger:
The judgment and opinion of the Court in 73-1309, Bigelow against Virginia will be announced by Mr. Justice Blackmun.
Harry A. Blackmun:
This case comes to us on appeal from the Supreme Court of the Commonwealth, Virginia.
The appellant, Mr. Bigelow is the managing editor of a weekly newspaper published in Charlottesville.
In 1971, over four years ago, an issue of the newspaper, carried an advertisement by the Women's Pavilion in New York City.
Its gist was that abortions are now legal in New York and that the advertiser could make all arrangements and help with information and counseling with respect to placement in accredited hospitals and clinics.
At the time the ad was carried, abortions were legal in New York although not in Virginia and there then was no proscription in New York against the rendition of medical referral services for a fee.
Later, the latter was restricted by New York statute.
Also at the time, the advertisement was carried in Virginia, that state had a statute providing that if any person by advertisement or by the circulation of any publication in any manner encourage the procuring of abortion, he was guilty of misdemeanor.
This was an old statute going back to 1878.
Apparently however, Bigelow's prosecution was the first under that statute in modern times.
And parenthetically, we note that the statute was amended in 1972 so as to restrict its application with respect to an abortion to be performed in Virginia.
Bigelow was found guilty under the statute and was fined.
The Supreme Court of Virginia on review, affirm the conviction by a divided vote.
After the decisions in the abortion cases in this Court, some two years ago, we vacated the judgment and remanded the case for further consideration in the light of those cases.
On reconsideration, the Supreme Court of Virginia again affirmed the conviction.
This of course is a First Amendment case rather than a case concerning abortions as such.
In an opinion filed today, we reverse the judgment of the Supreme Court of Virginia.
We hold that the statute as applied to appellant, Bigelow infringed constitutionally protected speech under the First Amendment.
We further hold that the Virginia courts erred in assuming that advertising, as such, was entitled to no First Amendment protection.
Speech is not entirely stripped the First Amendment protection merely because it appears in the form of a paid commercial advertisement and the fact that the ad here, reflected the advertiser's commercial interests did not negate all First Amendment guarantees.
Viewed in its entirety, this ad conveyed information of potential interest to a diverse audience.
The State of course, has an interest in the welfare and health of its citizens.
It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave the borders of the state.
But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about activity that is legal in that other State.
I'm authorized to say that Mr. Justice Rehnquist has filed a dissenting opinion and is joined in that opinion by Mr. Justice White.
Warren E. Burger:
Thank you Mr. Justice Blackmun.