BIGELOW v. VIRGINIA
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?
Legal provision: Amendment 1: Speech, Press, and Assembly
The Court held that the Virginia law infringed upon Bigelow's First Amendment rights and violated the Constitution. Citing prior holdings such as New York Times v. Sullivan (1964), Justice Blackmun denied the Supreme Court of Virginia's ruling that commercial speech is not afforded First Amendment protection. Furthermore, the advertisement in question contained important information in the "public interest" which went beyond merely informing readers of a commercial service. Finally, the Court feared that the Virginia statute had the potential to "impair" national and interstate publications which might choose to carry similar advertisements.
Argument of Melvin L. Wulf
Chief Justice Warren E. Burger: We'll hear arguments next in Bigelow against Virginia.
Mr. Wulf, you may proceed.
Mr. Wulf: Mr. Chief Justice and may it please the Court.
This case is here on appeal from the Virginia Supreme Court following a remand from this Court after the decisions here in Doe v. Bolton and Roe v. Wade.
The question, the principal issue that the Court has to decide in broad terms is whether the First Amendment which extends a special and explicit protection to the press allows a newspaper editor to be held criminally responsible for publishing in his newspaper an advertisement for lawful abortion services.
The facts are straightforward and were submitted by agreement on stipulation.
The appellant, Mr. Bigelow is -- was the director and managing editor and responsible officer of a newspaper called the Virginia Weekly.
Chief Justice Warren E. Burger: Would it make any difference Mr. Wulf to your decision you have asserted in your briefs if that were explicitly an ad which solicited, actively solicited -- you say this is just an announcement of service, but suppose they solicited and fixed prices and set credit terms can be arranged in an extensive treatment that usually associated with solicitation of business?
Mr. Wulf: No, sir.
I don't think it make any difference at all for the purpose of this case.
Chief Justice Warren E. Burger: It wouldn't make any difference at all, then it follows the state has no power to regulate the advertising of professional services?
Mr. Wulf: Well, these were not directly professional services that were being regulated in any case, these were referral services.
This was not an advertisement by the physician that was performing the abortion.
This was an advertisement by an independent institution organization which referred patients who came to them for the medical services.
Chief Justice Warren E. Burger: As a matter -- that's conduit to the professional services, isn't it, a direct --
Mr. Wulf: It surely is.
No, I don't say at all that the state cannot regulate profession conduct.
I say -- that was your question.
I say that this was not that, one; two that it can't do it in this case because they can't act against the press in this situation; and three, they can't do it in this case because the service was that was to be performed as outside the territorial power of the state, because the advertisement was for and the service to be performed in New York where Virginia has no power over medical services, and it was lawful in New York.
As I say, the facts consisted in this case of the advertisement, which on page 4 of our brief, which announces that abortions are legal in New York, that there are no residency requirements there, that the agency will provide placement service “at low cost”, and provides New York address and two New York phone numbers where the services can -- where the information about the services can be provided.
Defendant, the appellant went to trial on those facts and was convicted under Section 18.21-63 of the Code of Virginia which is also on pages 4 and 5 of our brief, which states that “If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, encourage or prompt the procuring of abortion or miscarriage, he shall be guilty of misdemeanor” was convicted fined $500.00, $350.00 and that was suspended on a condition that he'd not violate the statute again.
The Virginia Supreme Court in its decision held that the ad satisfied the terms of the statute, because it amounted to the encouraging or prompting of the procurement of an abortion and that it was not merely informational, then went on to say that in petition it was a commercial advertisement offering services for fee relying on Valentine v. Chrestensen and the Fourth Circuit's decision on Hunter versus United States very generally.
And went further and in particular siad that where the regulation of medical health practices are concerned, the public should be free of commercial practices and pressures.
And also finally held that appellant had no standing through his -- the overbreadth argument because appellant's conduct was in the commercial zone.
I shall address myself to the first two issues my co-counsel Mr. Lowe will address the overbreadth argument on his portion of this argument.
Chief Justice Warren E. Burger: I suppose it follows from your position Mr. Wulf that a state would be constitutionally prohibited from telling newspapers that they could not advertise cigarettes?
Mr. Wulf: Yes, yes.
I don't think that cigarette advertisers are immune from prohibitions on advertising; I think newspapers are immune from such regulation.
Justice Harry A. Blackmun: What about the Virginia newspaper carrying an ad for a Maryland Lottery assuming the lottery is illegal in Virginia but legal in Maryland?
Mr. Wulf: I think, I think that's lawful too because I don't think that that would be any different than the facts in the case here, yes, Your Honor.
Justice William H. Rehnquist: What do you do with the Pittsburgh Press --
Mr. Wulf: I disagree with it Your Honor.
Justice William H. Rehnquist: Well, you got five people that are still here though that joined it.
You got to get at least one of them.
Mr. Wulf: Well, what I do with Pittsburgh Press is to try to persuade at least one of the members of that majority but this is not commercial speech that's involved in my case, and I will deal with that because I think it's pretty clearly not.
Before getting to the commercial speech, question though, this statute -- the first argument is that the statute has to be struck down on its face and as construed in this case by the Virginia Supreme Court, because it, it does not bend any of those categories of speech which this Court has held are prohibitable nor does it require the -- nor in this case was there any clear and present danger that any evil which the state might prohibit would in fact be met.
We also argue that as far as the Virginia Supreme Court's medical health interests, asserted interests goes that insofar as that invites the application of balancing test here, that in the balance, the appellant must prevail, and we also argue that the statute is overbroad.
But arching over all of those arguments which I make is the fact that the appellant here was a newspaper editor convicted solely because of a -- words printed in his publication, his newspaper.
And the specific protection extended to the press by the First Amendment and the construction application of the free press provision by this Court at least since Grosjean and on through Mills, New York Times v. Sullivan, Pentagon Papers case, Tornillo, requires that the conviction in this case be reversed and that the appellant not be allowed to be convicted of a crime merely for printing material in his newspaper.
And indeed even Pittsburgh Press assured us that the First Amendment protections of the free press would not go so far as to allow the appellant here to be convicted, because Pittsburgh Press, the majority opinion, distinguished between the material involved there and the advertisements -- and advertisements which expressed position on matters of social policy and also distinguished between the situation regarding the classified ads and the Pittsburgh Press case and the exercise -- distinguishing it from the exercise of editorial judgmental discretion in the content of advertisements.
And the Pittsburgh Press majority indeed promised, and I quote “that we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of use on these and other issues however controversial.”
This speech cannot be banned because it does not fall into any of the standard categories which this Court has allowed to be prohibited namely obscene.
It's not obscene, it's not libelous nor does the advertisement constitute fighting words.
Nor does it present assuming that the state may prohibit this prohibit abortions.
This statute does not require that advertisements for abortions satisfy the clear and present danger test.
In effect, it's clear that the mere advertisement allows ample time and in Mr. Justice Brandeis' words for a full discussion of the question whether the woman citizen of Virginia will in fact undergo the abortion.
But that rests -- but that argue -- even that argument rests on the duties assumption that the State of Virginia has any power at all to prohibit Virginia residents from being informed of the availability of lawful abortions outside the state.
There is a District Court -- three-judge District Court case in Georgia, the Atlanta Cooperative News case cited on our brief which the facts struck down what is the federal equivalent of the Virginia statute in 1972 are precisely on the grounds which I advance here in our argument.
And another District Court case in Michigan that supports the application of the clear and present danger test to abortion advertisements, in that case it was a ban on billboard advertisements of lawful abortions, abortions lawful in New York.
As far as the regulations of the medical health field interest of the state is concerned it has no merit.
The Virginia Supreme Court put forward the reason describing its interest in terms of assuring the pregnant citizens of Virginia received proper medical care.
But that, in this case, although generally of course, a fair interest of the state where medical care is concerned, doesn't apply here.
First, the First Amendment is involved in this case on behalf of the appellant who was an editor of a newspaper, and for the reasons I have already briefly canvassed that is one of the other ingredients that has to go onto the balance here.
There is the correlative First Amendment right of readers of the newspapers to receive the information about the availability of lawful abortions in New York honest and on a subject which concerns the right that held by this Court to be fundamental to choose whether the right that women have to choose whether or not to bear a child.
There is an addition in the balance the constitutionally protected right to travel across state borders.
There is the constitutionally protected right to privacy which I have alluded to.
And there is finally, the absence of power in the State of Virginia at all to regulate the contrary in any state -- the absence of power in any state to regulate the conduct of its citizens out of state in ways that have no contact with Virginia at all except the fortuitous fact of residency.
And I think in fact that the last reason is virtually dispositive of this case, because it seems to me unarguable that the states cannot forbid its citizens from engaging in acts which are lawful outside the state, and if it cannot forbid that then it cannot forbid it advertising of those activities.
Didn't I correctly understand you to concede that the State of Virginia or any state could forbid members of the medical profession from advertising to perform any kind of services including abortion, specifically in abortion?
Mr. Wulf: No, I didn't concede that Your Honor.
I concede that there's great power in state to regulate delivery of medical services.
Chief Justice Warren E. Burger: I thought you said that they could forbid the doctrine, they couldn't forbid the newspaper from taking the ad?
Mr. Wulf: I said more generally that producers of good -- I think what I said was the produce -- at least what I intended to say was producers of goods and services could be prohibited from advertising in some cases, which I don't have to define that there is a difference between prohibiting them from advertising and prohibiting and penalizing newspapers for running the advertisement.
So, I did not concede that physicians could be prohibited from advertising --
Chief Justice Warren E. Burger: Some of the members of the Court in the Pittsburgh Press case thought that employers might be prohibited from specifying certain factors in employment ads but the newspapers could not.
I think there was some concession work in the case.
Mr. Wulf: Yes.
No, I say, in general, I agree with the minority's view in Pittsburgh Press about how to deal with that problem, prohibit the advertiser and not the newspaper.
Your question was specifically whether the states could totally ban physicians from advertising their services.
The Court's never decided; it's come close to it perhaps in the Head case although that there were no First Amendment issues raised there.
I suppose I'm affected by our culture in thinking perhaps that states can prohibit physicians from doing it because they do, but I don't know that there's ever been a serious First Amendment objection to that to present to this Court or any other court.
Justice Thurgood Marshall: Isn't it true that the pressure here really put on the doctor who does the advertisement and not on the paper who carried it?
Mr. Wulf: I beg your --
Justice Thurgood Marshall: Isn't the usual pressure on that doctor not to use the newspaper rather the newspaper who published it?
Mr. Wulf: Well, surely I think the pressure is a thread of being disbarred on -- yes, and not on the newspaper because the doctor, I think in practical terms doctors -- I don't recall ever seeing an advertisement by a physician for standard medical services.
Justice Thurgood Marshall: What if there have been Dental?
Mr. Wulf: I'm sorry?
Justice Thurgood Marshall: There have been Dental cases?
Mr. Wulf: Yes, there was a case the similar case here of course upheld the power to prohibit that but again there wasn't any First Amendment issue raised there.
Justice Potter Stewart: It was the Head case wasn't it?
At least that was one case that was oculist?
Mr. Wulf: That was oculist or optometrist.
Well, that was --
Justice Potter Stewart: Optometrist.
Mr. Wulf: Yes, yes.
Again, no First Amendment claim raised there.
There is of course the related interesting case and cited not on our brief but in the brief of the amicus curiae the Virginia Consumer Council case, brought by consumers rather than pharmacists attacking a prohibition against pharmacists advertising prices of prescription drugs.
And I would think that perhaps the same constitutional approach might successfully be taken with respect to advertising by physicians, where it's a consumer issue.
Indeed as to advertising by attorneys as well.
Justice Lewis F. Powell: Mr. Wulf, you pointed out that this advertisement related to abortions in New York where they were practically illegal, suppose you'd had an advertisement for narcotics in Virginia, the ad indicating that if you got in touch with a certain individual, he could direct you to a place where narcotics could be obtained?
Mr. Wulf: I think that could be prohibited indeed.
I think -- I don't know that that speech I think that's probably criminal solicitation assuming that a particular narcotic was forbidden validly by the statutes of Virginia or whatever state.
Justice Lewis F. Powell: Would your answer be the same if five years ago before this Court's decision on abortions, this ad had related to abortions in Virginia where at that time they were illegal except under certain circumstances?
Mr. Wulf: I don't think so Your Honor because I think that we must look not only at the question of whether a particular service or goods is prohibited but we also have to look at the nature of the service or the goods.
And I think that whereas an abortion there was even then a very -- it was then a very controversial issue, there was a very substantial constitutional argument to be made out and behalf of the right of women to have abortions which was of course the ultimate result in this Court, and that there were the very substantial privacy claims on behalf of abortions that it would be a different case then the prohibition against advertisements for narcotics or for an assassin for example, things of that sort, where there was not the countervailing claims available on behalf of the consumer of the particular ban products.
Justice Byron R. White: I thought you would (Inaudible).
Mr. Wulf: I wouldn't Your Honor where -- no, I don't think I said that, if I did I didn't intend to.
What I was saying was that --
Justice Byron R. White: But I think you would not say more?
Mr. Wulf: Well, I might make it but I don't have the additional argument that it could be prohibited because it was solicitation of criminal offense, but I don't.
You asked me whether I would argue that, if there was an advertisement for assassin in a newspaper whether the --
Justice Byron R. White: Unless assassins mentions for hire -- assassins for hire?
Mr. Wulf: I might make it but I wouldn't make it very confidently although I might argue that you couldn't proceed against the newspaper that you have to proceed against the advertiser.
I might make that argument in that case also.
On the question -- Mr. Lowe has his 10 minutes due right this minute.
We spelled out in our brief why the advertisement isn't purely commercial which is the words used in Valentine and I would ask the Court to examine our reasons there in the brief.
It surely is not a purely commercial advertisement in the circumstances of the subject being advertised.
Chief Justice Warren E. Burger: Mr. Lowe.
Argument of John C. Lowe
Mr. Lowe: Mr. Chief Justice and may it please the Court.
Mr. Wulf has addressed the question of the First Amendment protections involved here and I will speak to the issue of the overbreadth doctrine relating to First Amendment issues on this advertisement that was placed here.
First, we certainly contend that this advertisement was not pure commercial advertising, and I will address that specifically in a moment.
We believe that there is ample evidence in the record of editorial position being taken within the advertisement and that this is a part of the editorial position of this paper.
The overbreadth question of course --
Chief Justice Warren E. Burger: Do newspapers ordinarily accept pay for exercising the editorial function?
Are you suggesting newspaper accepts -- will publish editorials for pay?
Mr. Lowe: Your Honor, I am most certainly suggesting that in the context particularly of an underground newspaper where it's a hand to mouth operation where a dollar here and there helps to keep the paper going that they do accept fund from whatever source including accepting advertisement which follows their editorial policy and supports it, but which will provide some revenues, and in fact this is the case here.
And I think that one of the points that has been raised is that this was a paid advertisement for a commercial profit organization.
Now, the fact that it was paid has been disposed off in New York Times against Sullivan.
That clearly does not remove the First Amendment protection.
The fact that it was allegedly a profit-making organization is only in the record because of the May-June issue of the Virginia Weekly which is in the record in kind relating to an acknowledgement by the Weekly Staff on page 5 where it states, “The weekly collective has since learned that this abortion agency, as well as a number of other commercial groups aren't charging women for a fee for a service which is done free by Women's Liberation, Planned Parenthood.”
In other words, this -- and this was submitted by the Commonwealth and yet does support factually the contention that at the time this ad was inserted, at the time the offense took place, the staff of this newspaper thought that they were simply one more group of the radical left wing or whoever it is, it is urging the editorial policy of this newspaper which was supporting it and was doing a free service to people that they genuinely felt needed abortion counseling.
Only later they find that these abortion advertisement services, Women's Pavilion, was actually making money on it, and to their great chagrin they announced it here with some anger.
I think that points out graphically that this was not a commercial advertisement in the sense that they knew this was a profit making venture, but rather was a part and extension of editorial policy.
Chief Justice Warren E. Burger: If an editor is so enthusiastic about a particular activity, he can promote that in his editorial columns and his news column without calling on ads, can't he?
Mr. Lowe: He can and he does.
In fact, in the May-June issue, there is editorial writing and I might point out Mr. Chief Justice that the Attorney General of Virginia has stated that this is not an underground newspaper or at least that there is nothing in the record.
I think within the limits of the English language in the minds of man to create an underground newspaper, the May-June 1971 issue is such a newspaper if there are any at all.
It has all the revolutionary rhetoric, all of the anti-establishment epithets, the whole spectrum of underground newspapership, and in fact it has, in many issues, and I believe in this one also, little boxes of information.
If you want abortion counseling, contact Diane at a certain number or that type of information.
Chief Justice Warren E. Burger: Are these newspapers on the record?
Mr. Lowe: The other ones are not.
No, Your Honor, and one of the reasons and again I have to state that in the trial court in the initial two trial courts we have a two-tier system in Virginia of course.
The issue of commercialism was never raised by the Commonwealth, never raised by the court and did not come up and there was no record made on it other than these two issues.
The issue which is in whole and of course the advertisement itself, but in fact, the editorial policy is supported by advertisements by notices which you might call advertisement but which are really insertions of little boxes of information where you go for certain types of information if you want it.
Now, in the context of the case of Broderick against Oklahoma which we have cited in our brief, this Court discussed the overbreadth doctrine, but in fact, I think Broderick really related more to a changing view where the First Amendment activity was conduct rather than speech.
There, of course the Court stated that conduct would have to be real and substantial overbreadth if it were going to be overruled rather than in a pure speech where a defendant or an appellant could assert hypothetical rights of others in overturning a statute.
Now, the Attorney General in this case does not really contest the idea that this might be overbroad if it is a First Amendment issue, but merely contests the standing and says there is no First Amendment issue here.
We have of course a pure speech question here.
I don't think there's much question that we're not involved in conduct.
This is an advertisement, it's a mere advocacy insofar as it had editorial content and we believe that the, as I have mentioned before, the commercialism does not really get in the way of a fact that it is pure speech.
We believe that the record itself shows that there's an editorial policy which is supported by the advertisement.
Now, in the context of Broderick, we do have a very substantial overbreadth here.
The hypothetical situations we have outlined in our brief are very substantial.
Under the Virginia law, a doctor could not advise his patient to have an abortion.
A husband could not urge his wife to have an abortion if they had an unwanted pregnancy.
An editorial in a newspaper could not urge abortions to cut down on population explosions, speeches, the zero population group, all of these groups would be illegal if they so much as urge abortions.
This was a very burning social issue particularly before the Roe against Wade and Doe against Bolton decisions, and it is still a very burning issue.
Now, the fact that there is a substantial chill on First Amendment activity is pointed out by the Commonwealth Exhibit number 3 in the record which is a Cavalier Daily, University of Virginia newspaper of 1970 in which there was an article attributing to the Attorney General of Virginia a warning to the Virginia Commonwealth University School Newspaper that they better not publish any abortion advertisements for abortion referrals.
I think that clearly when the Attorney General of Virginia issue warnings you must have chilling effect on rights.
Now, we again following, the Broderick type of analysis, we do not have here an ordinary criminal law.
This is a law which is specifically designed and aimed at abortion advertisements and not illegal advertisements in general.
And in response to your -- further response to your question Mr. Chief Justice as to whether a state, for example, could not prohibit absolutely advertisements with rates listed in there, I think that Pittsburgh Press teaches us that if the advertised information is itself illegal, such as discriminatory sex hiring, then that is a different category entirely and if the state, for example, prohibited physicians from advertising rates or from posting rates or from telling people rates of abortions, then I think clearly they could then under Pittsburgh Press find the advertisement to be an illegal one.
Now, we disagree with Pittsburgh Press but that I think I have to concede if I can see that the court is talking about Pittsburg Press.
In addition, I think the real danger there is that the state would come up with law that says, it shall be unlawful for a newspaper to publish an ad which is illegal, and leave it up to the press to worry in advance of every advertisement it put in whether it might violate some hiring law or might some housing law or some professional law at the risk of publishing at all to where newspaper perhaps would have to restrict greatly the type of ads that it took.
Again, I would emphasize that abortions were legal in Virginia when this case came down, when charge was made.
True, there were certain types of abortions which were not legal but there were legal abortions, so that this was not an advertisement for an illegal activity even in Virginia, and following the Fifth Circuit case which this Court denied certiorari to, the Hyatt against United States which we have cited in our brief.
In Hyatt there was an anti-divorce advertising statute, and the Fifth Circuit specifically said, "It would be one thing if you prohibited advertisement of divorces which were fraudulent or somehow illegal."
And in this context if this were a well drawn statute, narrowly drown to prohibit illegal abortions in Virginia, those which were illegal under Roe v. Wade --
Justice Byron R. White: Well, what about the -- what about the law, doctors may not advertise the newspapers may not carry their ads?
Mr. Lowe: I think the first will Mr. Justice White that that is --
Justice Byron R. White: Yes, that is narrow?
Mr. Lowe: I think that would but I think that would be overbroad in sweeping in much conduct which would not be proper now --
Justice Byron R. White: Like what?
Mr. Lowe: Well, for example I think that there -- well, of course obviously adopted to advertise for health.
Justice Byron R. White: Well, they don't have to ask for their medical services.
Mr. Lowe: I would have to say Mr. Justice White --
Justice Byron R. White: Well, let's just make it as narrow as you can possibly imagine and so that you have to get down on the substitute --
Mr. Lowe: Yes, sir.
Justice Byron R. White: -- and not talk about overbreadth.
Mr. Lowe: Alright, of course I take --
Justice Byron R. White: May the press be permitted to carry the ad of a person who is forbidden to publish an ad?
Mr. Lowe: I would have to first answer somewhat as Mr. (Inaudible) had just answered that I must answer that in a context of the First Amendment as this Court has handed down through decisions.
And I believe that this Court's decisions would say that a state could do that.
I don't happen to personally agree with it but I believe that I would have to interpret it in that context given the decisions which this Court has handed down.
Yes, I think the state could do that --
Chief Justice Warren E. Burger: Pittsburgh is the one that you would center on?
Mr. Lowe: I think I would center on Pittsburgh.
Chief Justice Warren E. Burger: Because it's the most recent or the most definitive?
Mr. Lowe: No, I think it's just the most definitive on point there, and again I have not -- we have dealt in the terms of an abortion referral agency which I think it's a little different than a professional, a doctor.
Here, they're offering information, they're offering and perhaps they call it conduit, but they're offering directions; they're not offering a specific service that's performed on the patient.
Justice Byron R. White: Well, wasn't there some flavor of this in the Virginia Court's opinion in this case?
Mr. Lowe: Oh! I think that there was such a flavor, yes.
Justice Byron R. White: That the doctors shouldn't advertise; the newspaper shouldn't carry their ads?
Mr. Lowe: I believe that that is the part of the basis, yes.
Mr. Chief Justice, I see that my time is up and I will (Inaudible).
Chief Justice Warren E. Burger: Mr. Lacy.
Argument of D. Patrick Lacy, Jr.
Mr. Lacy: Mr. Chief Justice and may it please the Court.
The question in this case is not whether 18.1-63 denies a woman, a right to have an abortion or interferes with the right of a woman to have an abortion.
Clearly it does not.
This is not an abortion case; it is a First Amendment case.
It's important to note at the outset, however, that the appellant does not contend that the statute was passed with intent to muzzle or curb the press or that the statute has the effect of threatening the financial viability of the newspaper or that the statute in pass in any significant way, the newspaper ability to be published or distributed or that the statute infringes upon the layout or organizational decisions of the newspaper, nor where the record support any such contentions.
The appellant was convicted for running in his newspaper, a purely commercial advertisement for a commercial abortion referral agency.
The question in this case then is whether the state is barred from prohibiting purely commercial advertisements for the sale of medical services.
The Supreme Court of Virginia found the advertisement to be purely commercial.
This finding is amply supported by a fair reading of the advertisement itself.
As stated by the court below, the advertisement constituted an active offer to performance a service.
It clearly does not have the attributes nor does it serve the vital function of constitutionally protect of speech.
The court below correctly recognized the fact that they had clearly exceeded in informational status, while the appellate would have this Court extract a few line here and there from the advertisement and be blinded to the remainder.
This cannot be done.
The advertisement is a single document contained within four corners.
It appears on page 3 of their brief.
Each line, each statement is geared to making the offer sufficiently attractove to entice would be purchases of the service.
Justice Byron R. White: What -- did you find any evidence that the statute was based on anything other than an assumption that a newspaper shouldn't advertise or services that were illegal?
Mr. Lacy: No, sir.
The underlying, as stated by the Supreme Court of Virginia and given into construction of a statute, the underlying basis of the statute is that there should be no advertising, commercial advertising of medical services.
There should be no commercial pressure or practices through the use of commercial advertising. The case as was decided by the Supreme Court of Virginia was not decide on the basis of whether abortion was or was not illegal.
Justice Byron R. White: Do you think that the -- just a specialize application of the general prohibition against advertising by doctors?
Mr. Lacy: That certainly was a holding of the Supreme Court of Virginia.
They didn't state on those words but they said this is a prohibition against commercial practices and pressures directed to free the medical health field of commercial issue, and cited -- it cited Semler versus Dental Examiners and Williamson versus Lee Optical Company standing for that proposition.
Justice Thurgood Marshall: Well, what business that it have -- Virginia would have to New York medical?
Mr. Lacy: Well, the business of Virginia obviously we cannot tell New York what its law should be.
We cannot prosecute a woman who goes from Virginia to New York at that time to obtain an abortion, but we can say that if you come to Virginia and you want to advertise medical services in Virginia we have --
Justice Thurgood Marshall: But they're not advertising medical services in Virginia.
They are advertising medical services in New York.
Mr. Lacy: But the advertisement is in Virginia, the actual advertisement of medical services is in Virginia, although the medical services are going to be performed in New York, the advertisement for those medical services is in Virginia.
Justice Thurgood Marshall: And how is it going injure the Commonwealth of Virginia?
Mr. Lacy: Well, the same way in advertising from medical services that would be performed to Virginia could harm a woman.
That is that --
Justice Thurgood Marshall: You're talking about “medical services in New York City” or rather “medical services outside of the Commonwealth of Virginia?”
Mr. Lacy: Correct sir.
Justice Thurgood Marshall: That's what you're seeking to regulate.
Mr. Lacy: The statute --
Justice Thurgood Marshall: Do you think it's prohibited?
Mr. Lacy: We're not seeking to prohibit -- this statute is not a statute of prohibiting abortion, no sir.
Justice Thurgood Marshall: What is prohibited then people from traveling to New York to get one?
Mr. Lacy: No sir, it is not.
There's no --
Justice Thurgood Marshall: Well, what is it?
Mr. Lacy: There's no statutory prohibition against the woman leaving --
Justice Thurgood Marshall: What it is, it's just penalizing the newspaper for publishing it?
Mr. Lacy: No sir, it's a statute intended to keep commercial -- purely commercial advertising out of the medical health field.
There'd be no difference between this statute if --
Justice Thurgood Marshall: Well, could you prohibit them from advertising Alka-Seltzer?
Mr. Lacy: Well, Alka-Seltzer, I don't think is within that frame of medical health.
It's a none proscription.
Justice Thurgood Marshall: Well, Aspirin?
Mr. Lacy: I think they could prohibit --
Justice Thurgood Marshall: Aspirin is slightly medical?
Mr. Lacy: I think they could prohibit proscription drugs then you get in the --
Justice Thurgood Marshall: Could they prohibit the advertising to people of Virginia that you can buy Aspirin in New York?
Mr. Lacy: No sir, but not for the reasons --
Justice Thurgood Marshall: And the difference between that and this case is just what?
Mr. Lacy: The difference between that case in this case is the fact that abortion is a medical procedure.
This Court has so held; in Roe v. Wade and Doe v. Bolton this Court held that in abortion is a medical procedure.
It struck down to statutes before in Roe v. Wade and Doe v. Bolton precisely, because the states in those particular instances, refuse to recognize the fact that it was a medical procedure.
And those cases extol the virtues of professionalism in the abortion decision in the first trimester.
Those cases extol the virtues of the physician-patient relationship in the first trimester.
To strike the statute down would be totally inconsistent with Roe v. Wade and Doe v. Bolton.
The purpose of this statute is to promote professionalism to keep, to make sure that person --
Justice Thurgood Marshall: Professionalism in New York?
Mr. Lacy: Professionalism -- anybody wants to render medical services to individuals in Virginia.
Justice Thurgood Marshall: In New York?
Mr. Lacy: We have the right to make sure --
Justice Thurgood Marshall: You make sure that New York does its medical job properly?
Mr. Lacy: Make sure that anybody who comes down to Virginia and advertises in Virginia.
A doctor from New York who came down -- who would come down and advertise and that goes back.
Justice Thurgood Marshall: I don't think you had anything to do with this, if this was -- and advertise would mail down through the mail, you don't want to have anything to do with that, because of interstate commerce, and they sent it down and sent the check and then they published it.
And how did that injure Virginia?
Mr. Lacy: It's not a question of -- you can't point to the injury right there.
Justice Thurgood Marshall: Could you pass a statute to say that no woman in Virginia can go to New York and get an abortion?
Mr. Lacy: Absolutely not.
Chief Justice Warren E. Burger: The Supreme Court of Virginia seemed to put it on the basis of Virginia's sovereign power to protect its citizens, did it not?
Mr. Lacy: Precisely sir, the police power to protect the health and welfare of its citizens.
Obviously it could not pass a statute saying that if you advertise medical services in New York, you can be convicted.
That's not the case at all.
Cases here that a Virginia doctor who advertises can be regulated, an out of state doctor who advertises can be regulated, because the purpose, the purpose is to make sure that the person who's rendering the services is interested in the welfare of the patient and not in financial gain.
Justice Lewis F. Powell: Mr. Lacy.
Mr. Lacy: Yes, sir.
Justice Lewis F. Powell: Suppose the advertisement had advised readers where they could get the best appendectomy in Virginia, is there any statute in Virginia that would proscribe that type of advertisement?
Mr. Lacy: Am I to understand Your Honor from the hypothetical that it would be no profit, it's just an informational bulletin.
Justice Lewis F. Powell: No.
Let's assume it's a commercial ad.
You have pointed out that this case did not turn on whether or not abortions are legal or illegal.
You are emphasizing, as I understand your argument that Virginia has the right to proscribe advertisements of medical services whether they are legal or illegal?
I was just wondering, I don't know whether there is a statute in Virginia that would prevent to somebody advertising what is a perfectly normal legal service in Virginia.
I'm not talking about medical ethics at the moment, I'm talking about one is the statute and if there is, would that statute withstand a First Amendment attack?
Mr. Lacy: Well, the answer to your first question or your second question first Your Honor, I believe it would withstand and I believe the state has a valid interest in seeing that medical services, medical procedures are not advertised, in seeing that doctors don't say, I perform or I specialize in hemorrhoidectomy or whatever it may be called and my price is so and so or something this.
Well, I think the state has a valid interest.
Secondly, there is a statute in Virginia Mr. Justice Powell 18.1-417.2, if my memory serves me correctly that addresses itself to medical referral agencies, those pass subsequent to this case even -- well it's just passed recently.
But I do not believe that it reaches directly to advertising question.
But of course advertising could I think come within its number there.
But to answer your second question first a very definitely that's the very point we're making.
It's not the question of whether the services are legal or illegal.
It's a fact that the State of Virginia, the general assembly of Virginia has the authority to determine that the advertisement of medical services, the advertisements of doctor services.
Justice William J. Brennan: I wonder how far this goes.
Suppose this ad, instead of appearing in this newspaper, I gather, published in Virginia had appeared at New York Times, could this statute be applied to distributor of the New York Times in the State of Virginia?
Mr. Lacy: Well, that the statute itself only pertains to people who publish it or who cause it to be published.
Now whether it could be -- I really don't think it would be enforced as to the newsboy who might deliver --
Justice William J. Brennan: Whether if it's enforced or not.
If the statute reaches the distributor of the newspaper it did, could be --
Mr. Lacy: Well, first of all I don't think it would apply to the distributor.
Did you ask me second question would be what?
Justice William J. Brennan: Yes.
I'm wondering how far you carry your power of the state argument.
Chief Justice Warren E. Burger: As to who can be prohibited?
Justice William J. Brennan: Yes.
Mr. Lacy: Well, we certainly --
Justice William J. Brennan: Reversed and appeared not in this paper but in New York Times.
New York Times, I gather, is sold in Virginia.
Mr. Lacy: It is sold in Virginia, yes sir.
Justice William J. Brennan: Could it be distributed (Voice Overlap)?
Mr. Lacy: No, sir.
Justice William J. Brennan: Why not?
What's the difference between the distributor in New York Times and publisher of this little paper?
Mr. Lacy: Well, one big factual difference is that this person, the appellant in this particular case is a person who actually published it.
The distributor, the poor news boy out on the corner --
Justice William J. Brennan: Well, I'm assuming a statute would reach those other than distributor.
Mr. Lacy: Oh! I'm sorry.
Without any sign or anything at all --
Justice William J. Brennan: There's nothing except what -- you have this advertisement in New York Times instead of the newspaper distributed in Virginia?
Mr. Lacy: I think so for this reason.
Justice William J. Brennan: It could?
Mr. Lacy: Yes sir, I think so for this reason.
Let's assume that a doctor works up a handbill, setting forth that he specializes in tonsillectomies and he has specials on every Wednesday and Friday in a certain hospital, if you care to come by.
He prints them up and he gives them to people, friends of his and says, how about handing them out?
I think we could stop those people from handing those things up.
Justice Byron R. White: And from putting the ad into a newspaper, advertisement?
Mr. Lacy: Precisely, yes sir.
Chief Justice Warren E. Burger: And do you think your statute 18.163, as it existed, went that far?
Mr. Lacy: No, sir.
Chief Justice Warren E. Burger: And it says if any person by publication much your advertisement or by the sale or circulation of any publication, wouldn't that cover Mr. Justice Brennan's hypothetical?
Mr. Lacy: The sale circulation, I think it's the economic activity, obviously it probably would in that particular instance.
Justice William J. Brennan: So the New York Times is in trouble if it carries its ads on the paper of Virginia?
Mr. Lacy: No sir, it's not in trouble now.
Chief Justice Warren E. Burger: Do you think --
Mr. Lacy: The statute [Laughter Attempt] -- the statute is no longer here.
We're talking about a statute that it's been effectively repealed by amendment over two and a half years ago. In essence, we will never know -- the statute was in the existence from 1877 and this is a first --
Justice William J. Brennan: They effectively repeal what has been repealed?
Mr. Lacy: Well, no sir what I mean is that it was amended I said effectively repeal by amendment.
What I mean is it's been changed now to refer to abortions which are intended to be performed in these states which are illegal in the state and there are no illegal abortions in Virginia.
Chief Justice Warren E. Burger: In other words, that would be procedures by other than licensed physician?
Is that the --
Mr. Lacy: Excuse me sir, I didn't -- I'm sorry.
Chief Justice Warren E. Burger: I understood your last statement that was limited to abortions that were illegal in Virginia.
Mr. Lacy: That's the amended version.
Chief Justice Warren E. Burger: Of statute?
Mr. Lacy: Yes, sir.
Chief Justice Warren E. Burger: That simply means that it's the one that's performed by someone other than a physician then?
Mr. Lacy: Precisely, we had -- we have to follow the decisions of this Court in Roe v. Wade and Doe v. Bolton.
Chief Justice Warren E. Burger: But they have nothing to do with advertising of medical services as I think Mr. Justice Powell pointed out.
I think the offense agreed to without and by implication.
Mr. Lacy: I'm sorry.
Chief Justice Warren E. Burger: This is a case involving advertising not the whole of the conduct.
Mr. Lacy: Precisely, but what the General Assembly did Your Honor up to the appellant's conviction -- and there's nothing in the record show they did it with regard to this case or not it was done.
It's just a cold, hard fact that the statute was amended.
They just changed the terms of the statute --
Chief Justice Warren E. Burger: Did you tell us that this was the first prosecution under the statute in modern times?
Mr. Lacy: The best information I have is not only in modern times but in any time.
I think the statute was passed in 1878, if my memory serves me correctly, and this has been the only.
I would also draw the Court's attention to the fact that when Mr. Lowe was up he called the Court's attention to an editorial on abortion which appeared in the subsequent issue of this very paper published by the appellant, and for which the appellant was never arrested or convicted or any sort.
The statute is not meant to direct itself to editorials.
It's not meant to address itself to informational burdens.
It's meant -- the Supreme Court of Virginia has construed the statute to pertain only to commercial advertising of these abortion services.
The advertisement does not express a position whether a woman should bear a child, nor does it criticize Virginia's abortion laws or their enforcement.
Now, the appellant does contend that the mere running of the advertisement constitutes an implicit editorial opinion on the subject matter of the ad.
Such a contention however is totally lacking the support in the record.
There's no evidence in this record that the newspaper had a perfectly acknowledge policy of accepting certain advertisements and rejecting others.
To be sure, the concept that the mere running of an advertisement constitutes in editorial endorsement of the subject matter of the ad would undoubtedly appall the editorial's test of the nation's newspapers.
The fact that they ran an ad in their newspaper and the mere running of that advertisement constituted an editorial opinion would undoubtedly appalled.
In short, the commercial advertising in this case is not stripped of its commercial character in any way, shape, or form by editorial judgment.
The advertisement published by the appellant does nothing more than propose a commercial transaction, and because it is pure commercial speech, it is unprotected by the First Amendment.
Unlike the commercial advertisement -- excuse me, unlike the non-commercial advertisement in New York Times versus Sullivan, this advertisement did not express opinion, recite grievances, protest claim abuses, or seek financial support on behalf of any movement.
Pure commercial speech is neither intended to be nor does it have the effect of contributing to public debate like the ad in question here, its intent and effect is simply to propose a business transaction.
Because we are dealing with pure commercial speech unprotected by the First Amendment, we turn then to what is the interest of the Commonwealth.
The interest of the Commonwealth as I related earlier to Mr. Justice Marshall is that the Commonwealth has a right, a valid interest, in saying that people who render these important services are not motivated of pure of financial gain.
They do not get into unseemly cut rate actions that they are interested in the welfare of the patient.
If my reading of Roe v. Wade and Doe v. Bolton is correct, this Court bottom its decisions on the professionalism, on the professional judgment of the doctor in the first trimester.
This statute like Roe v. Wade and Doe v. Bolton vindicates that professional judgment.
The Supreme Court of Virginia found that this statute was directed to commercial advertising and it was directed to the purpose of keeping these commercial practices and pressures out of this field.
I would call the attention of the Court to the New York cases cited by the Supreme Court of Virginia in its decisions, cases in which it was found abortion referral agencies for profit abortion of referral agencies where during substantial amount of advertising where acting as little men for doctors, were soliciting for and splitting fees with doctors.
And most importantly, those cases disclosed that these abortion referral agencies had no follow up procedures after abortions that the women were cast off after the service have been performed.
Justice Thurgood Marshall: How does that interpret an Act passed in 1872 as to what New York is doing there?
Mr. Lacy: Well, the Supreme Court of Virginia interpreted the Act.
Justice Thurgood Marshall: On the basis of what's going on now in as to compared to 1872?
Mr. Lacy: That could just easily have gone in Your Honor, but I submit that the Supreme Court of Virginia supposed we have no legislative history as you may know in Virginia versus Sullivan do we have legislation --
Justice Thurgood Marshall: Do you know, the Supreme Court of Virginia knows one single thing about what goes on in the matter of profession in the State of New York, am I correct?
Mr. Lacy: We know from the New York cases, the Supreme Court of Virginia cited the New York cases.
Justice Thurgood Marshall: That's all you know but you don't know how -- the Commonwealth of Virginia takes position that the medical profession is -- New York has long or (INaudible)?
Mr. Lacy: No sir, but the thing -- but the point is Your Honor that we don't have to wait.
We're not saying that all physicians in New York, Wisconsin, or Texas, we're not saying that at all.
Justice Thurgood Marshall: It was decided in Virginia to advertise in New York is wrong.
Mr. Lacy: Well, we've --
Justice Byron R. White: Now do you -- Mr. Lacy, do you have a -- is there before us in the brief story where the new statute in Virginia -- the text of it?
Mr. Lacy: Yes sir, for definitely.
Justice Byron R. White: Where?
Mr. Lacy: At page 4 of our brief in the footnote if Your Honor please footnote 2 on page 4.
Justice Byron R. White: So that is the effective statute.
Now, is it your position that if there was any overbreadth problem, it's cured by that statute?
Mr. Lacy: If the rationale -- Our rationale is underlying that overbreadth doctrine's chilling effect on First Amendment rights or maybe possibly selective enforcement of the statute -- if the statute is unenforceable those things cannot even exist.
Justice Byron R. White: So, you're saying that the present statute merely prohibits advertisings about illegal abortions.
Mr. Lacy: But that's what the statute says.
Justice William J. Brennan: Well, the present statute wouldn't reach this advertisement?
Mr. Lacy: Precisely, precisely.
Nowhere reach anybody --
Justice William J. Brennan: It wouldn't reach anything except promoting what would be in illegal abortion.
Mr. Lacy: Precisely.
Justice Byron R. White: But there are still illegal abortions.
I feel by people that were (Voice Overlap).
Mr. Lacy: Oh! Excuse me, you're precisely correct.
There would be in --
Justice Byron R. White: And in order there are still some abortions that are illegal?
Mr. Lacy: I'm talking in terms, we had a statute in Virginia or have a statute in Virginia almost identical to the Georgia statute in Doe v. Bolton if that's what referring to.
Because the overbreadth doctrine represents an exception to the traditional rule of standing that people cannot raise the hypothetical cases of other, it should be use only sparingly and as last resort, as I just mentioned just in, application of overbreadth doctrine in this case would strike down to statute, which is unenforceable.
Secondly, I would like to point out that the appellant has raised this morning, the hypothetical cases of a doctor and a hypothetical cases of a lecturer and a hypothetical cases of a woman and a husband and of an editorial writer.
First of all, we know that the appellant in this case has written editorials which have not been prosecuted, but also the Supreme Court of Virginia expressly rejected those hypothetical cases.
It expressly rejected them, and now the appellants says its dictum.
If the Court please, when the Supreme Court of Virginia says, "We do not consider the statute to encompass those cases."
We read that to mean that's precisely what they mean that it does not encompass those cases.
Furthermore, the Supreme Court of Virginia has authoritatively construed the statute to prohibit only commercial advertising.
So therefore, it would not even reach a husband and wife discussing or a doctor and patient discussing it.
It's our position that an application of the overbreadth doctrine in this case would simply result in a windfall for the appellant.
Justice Byron R. White: What do you think if the overbreadth -- let's assume the overbreadth argument is draw practical purposes out of the case, what do you think the issue is with respect to -- that's left in this case.
There was a criminal prosecution?
Mr. Lacy: Precisely Your Honor.
Justice Byron R. White: And a conviction?
Mr. Lacy: A conviction, yes sir.
Justice Byron R. White: For doing what, for preparing an advertisement about an abortion or an illegal abortion or a legal abortion?
Mr. Lacy: For curing and advertisement about a medical service to with abortion, abortion services, not illegal abortion services.
Justice Byron R. White: And in your view, it doesn't make any difference whether legal or illegal?
Mr. Lacy: Yes sir.
Precisely -- it's the same point about Dental Services and similar Dental Examiners.
The services were not legal, you know could've been legal or illegal it still proscribe --
Justice William J. Brennan: But I gather your whole point Mr. Lacy is that your Supreme Court has said this reaches on commercial ads, this is a commercial ad, there go the First Amendment argument fails, is that it?
But you're right.
Mr. Lacy: Purely commercial.
Justice Byron R. White: Well, that maybe right about the old statute but that's a conduct for which this defendant was convicted wouldn't violate this new statute?
Mr. Lacy: No sir, because it would have to -- well, it would have to be -- you gave me one example, I was to assume when I said that no illegal abortion in Virginia and you're correct in the -- that if they advertise that come down to the local midway --
Justice Byron R. White: Now is there some general statute that prevents doctors from advertising it?
Mr. Lacy: Yes sir, there is.
Justice Byron R. White: Is there any general statute that says newspapers can't publish doctors ads for their services?
Mr. Lacy: No, but they could be subjected to aiding and abetting and doctors do publish that.
Justice Byron R. White: Well then, why did you tell me carrying an ad -- carrying that this -- the ad that's involved in this case wouldn't be illegal in Virginia?
Mr. Lacy: This is not an ad by a doctor.
Justice Byron R. White: It's an ad about a medical service, isn't it?
Mr. Lacy: Well, you asked me whether we have a statute specifically drawn to doctors and I'm sorry.
Justice Byron R. White: Do you --
Mr. Lacy: Yes sir we do, specifically drawn to doctors.
Chief Justice Warren E. Burger: What if the doctor had his nurse, his receptionist put the ad in the paper, just simply giving out a name such as this one reliable medical referral service?
Mr. Lacy: Could we prohibit that sir, is that your question?
Chief Justice Warren E. Burger: Does the present statute of Virginia prohibit that?
I'm not talking about this new statute on advertising.
You said Virginia has a statute prohibiting doctors from advertising medical services.
Mr. Lacy: It's Section 54-317, sub-paragraph 13 and it says, "any doctor either directly or indirectly".
So, if it were proven that he told his nurse to go do it, that's precisely correct.
If I left you with a wrong impression I'm extremely sorry.
We respectfully submit that the judgment of the Supreme Court of Virginia should be affirmed.
Thank you sir.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.