*1 Richmond Virginia. Bigelow, Etc. Commonwealth C. Jeffery 1, 1972. September Record No. 7972. Harman, Carrico, Harrison,
Present, 1’Anson, Snead, C.J., Cochran JJ. III F. Guthrie & Gordon, on Lowe; Gordon, C. {Lowe John in error. brief), for plaintiff P. General Mil- Attorney Assistant Jr.,
D. Patrick Lacy, {Andrew Attorney G. Assistant Gen- Broaddus, William General; Attorney ler, defendant in error. brief), on eral, court.
Carrico, delivered J., court, tried without C. sitting jury, Bigelow1 Jeffery of abor- and convicted prompting encouraging Jeffrey C. Also Bigelow. shown tion sale, circulation by publication, Virginia Charlottesville, in violation of Weekly, newspaper published *2 § $500, Code 18.1-63. He was fined of which $350 suspended § condition that he not further violate 18.1-63. We upon granted him a writ of error.
The comes before us of fact and certain stipulation exhibits. had direct for the Bigelow responsibility publication circulation in Albemarle of 1971 issue of County February The issue contained the Virginia Weekly. advertise- following ment: on this are whether vio- questions presented appeal Bigelow § so, lated Code and if 18.1-63 by publishing is constitutional under the First whether the statute §1, 12, of the United States and Article Constitution Con- of stitution Virginia. 1950, as 18.1-63, amended, Vol.,
Section Repl. pro- vided:2 72J, was amended Acts ch. 1019. Section 18.1-63 lecture, advertisement,
“If or any by publication, person, manner, or in other sale circulation any publication, any of abortion or encourage prompt miscarriage, shall of misdemeanor.” he be guilty first contends that the advertisement was not in violation did 18.1-63. He says encourage per- abortions,
suade women to but instead obtain informed those merely had their that services were avail- already pregnancies rejected for able abortions. We do not of the ad- legal agree. vertisement exceeded an when informational status it offered to make all for immediate in accredited arrangements placement at low clinics cost. It constituted an active offer to hospitals per- service, than form rather statement of fact. passive By offering women, the advertisement arrange placement *3 amounted to an or a an abor- encouragement prompting procure tion, and violative thus was of the and intent of Code § 18.1-63. us to This the of the question brings § 18.1-63. contends that the the First infringes
Amendment of free is, and free therefore, speech press unconstitutional. are this contention. We here with the reject dealing
traditional role information and press disseminating communicating commercial with a advertisement the serv- opinion, promoting referral ices abortion That this is true is shown agency. by advertisement itself and an exhibit which is in the record. by holds advertisement out to the offer, women by Pavilion, to make Women’s all and to secure imme- arrangements in a or clinic for an this, diate abortion. All hospital placement will be done “at low advertisement cost.” The words, says, printed can read mean that the whether rhetorically, literally agency, business fee, will malte with for doctors necessary arrangements to secure an or clinics abortion for the Thus, customer. hospitals of both the advertiser nature and the commercial revealed. is patently in itself, is but an exhibit the record in the form
That enough by of the issues additional question of one publication provides issue of the in an May-June, Virginia Weekly, proof. arrest article entitled “abortion of staff members rap,” reported in the issue the advertisement for February dispute. publishing article, stated, it In the same apparent apology, “ learned collective has since that this abortion ob- Weekly agency,” Pavilion, “as well as a number of other the Women’s viously meaning women a fee commercial are service which groups charging Liberation, Parenthood, free Women’s Planned and others.” done by becomes whether such an advertisement The question may answer the state. We the question by constitutionally prohibited in the affirmative. States v. F.2d
In a case United Hunter, directly point, Hunter, a news- 1972), (4th Cir. sought enjoin government advertisements in his from carrying paper allegedly paper publisher, Act of which violative of a section of the Civil Rights pro- of an intent to discriminate in the sale or rental of hibits advertising district 3604(c). The court held that the 42 U.S.C. dwelling. First and that did not contravene the a court Act might, therefore, adver- constitutionally enjoin newspaper printing the statute. In the Fourth in violation of Circuit tisements affirming, stated: conclusion is unbroken court’s
“The supported [district] down which distin- from the line of authority ideas the First between expression protected guishes in a business context. It commercial Amendment and informa- ‘freedom of that, settled while now well communicating fullest tion and protection disseminating opinion’ enjoys no such restraint on Amendment, ‘the Constitution First imposes ” 459 F.2d advertising.’ respects purely government *4 omitted). (footnotes 211 at did not that the above rule contention
In to Hunter’s apply reply will not be insu- that “a the court stated to newspaper newspapers, of economic valid the otherwise lated from merely activity regulation dissemination of because it also constitutionally protected engages said that if the court And at another 212. F.2d at ideas.” 459 point has no constitutional “an individual advertiser statutory right can circulate a newspaper housing discriminatory advertisement at that unlawful better in no stand printing position F.2d 214. 459 individual’s request.”
195
Hunter is
one
of numerous cases
upholding
power
gov-
ernment to
commercial
The source of
regulate
advertising.
authority
for these decisions is Valentine v.
(1942).
316
52
Chrestensen,
case,
the United States
Court had before it the ques-
Supreme
tion of the
of a New York
ordinance which
City
forbade distribution in the streets of commercial and business adver-
matter. Chrestensen had
to distribute a double-
tising
attempted
handbill,
faced
one side
an exhibit for
and the other
advertising
profit
efforts to thwart the exhibit. The
expressing protest against
city’s
interfered with the distribution, and Chrestensen
police
sought
Valentine, the
commissioner, from such interference.
enjoin
police
The district court
and the circuit court af-
granted
injunction,
However,
firmed.
reversed,
that the First
holding
no restraint
states and
imposed
upon proscription by
localities of
and that it made no dif-
purely
advertising
ference that one side of Chrestensen’s handbill contained “matter
information.”
The rule that the First Amendment does not prohibit government of commercial where, regulation advertising especially applicable here, relates to the medical-health field. Patterson Drug Company Kingery, 821, (W.D.Va. 1969) United court); Advertising Corp. Borough (three-judge Raritan, 144, 152, A.2d 366 (1952); Planned Parenthood Com N.J. mittee v. Maricopa County, Ariz. P.2d in the medical-health field Regulations affecting advertising have also been attacked on Fourteenth Amendment grounds. attacks have been Williamson v. Lee Optical Co., 348 rejected. 483, 490 Semler v. (1955); Dental 294 U.S. Examiners,
196 F.
(1935); Patterson 305 Drug Company Kingery, supra, Supp. Ritholz v. 184 35 S.E.2d 823-25; 501-03, (1945); 224 Goe v. 168 Va. 191 S.E. Gifford, in 18.1-63, attention the statute here ques- Focusing tion, abortion, that it deals with a matter affect- vitally emphasize and welfare and in the realm of medicine. health ing public important the state to enact reasonable It within police power in decide to measures to ensure that women Virginia have come to their decisions without the commercial adver- abortions incidental to the sale of a box of usually soap tising pressure powder. And state is interested in women rightfully seeing Virginia decide to have obtain medical care and do who do abortions proper not fall into the hands of those interested financial only gain, not in the welfare of the patient. need look at the in New York State follow-
One experience of abortion to become convinced its necessity ing legalization of the for and the reasonableness question. advertising legislation (S.D.N.Y. Inc. Consultants, S.P.S. Lefkowitz, the court First and Four- 1971) court), upheld, against (three-judge attacks, a York statute teenth Amendment New prohibiting op- eration of abortion referral discloses agencies. for-profit received from 200 to calls that one such agency telephone per out-of-state, and that from 95 percent telephone day, mostly came from col- of another nonresidents. One calls agency agency after abortion was $5,500,000 in the first months lected eight legal- $1,200,000 sum was the There was ized, of which agency’s portion. of substantial One evidence advertising by for-profit agencies. $1,000 a week and had carried adver- had an advertising budget tisements college newspapers throughout approximately country. cases, and two other New York State v. Mitchell,
S.P.S. Consultants and State v. Abortion (1971), 2d Agen- N.Y.S. Information (1971), disclose that the N.Y.S. 2d 597 cy, Inc., for-profit agen- doctors, as middlemen for were solicit- New York were cies in acting doctors, fees with and were splitting engaging ing patients medicine, all in of the law. violation The cases practice the referral lacked medical also show agencies personnel was no “follow after abortions that there up procedure” training were performed. for another rea New York Mitchell *6 interesting
The the involved in that was Mitchell The Martin son. apparently in Mitchell Family was also involved who Mitchell same Martin (E.D.Mich. v. Royal Oak, Inc. City Planning case, In the the relied here 1972), a case Bigelow. Michigan upon by a ordinance court struck down “any banning city abortion,” information concerning producing here. Mitchell had which is unlike the question displayed “Abortion Information” and an on billboard ad a merely offering numbers, an advertisement New York two quite telephone giving The court stressed from one different by Bigelow. published information, and Mitchell’s billboard offered its the fact that only be that the services to offered Mitchell were indicated case shows the true New York nature of But the innocuous. Mitchell’s operation. as are evils such disclosed the New
It is against practices § the advertisement restriction is York cases that Code 18.1-63 a and direct state has real interest ensur- to This designed protect. medical-health field be free of commercial that the and ing practices § a hold that is reasonable we Code 18.1-63 measure pressures, v. that Semler Dental Examiners, directed to supra, 294 purpose. at 612-13. conclude the for a
This would
further con
question except
§
tention advanced
that Code
18.1-63 unconstitutional
by Bigelow
Here, he
that the statute
because of overbreadth.
not
argues
in its
also
overbreadth
expression,
encompasses non-protected
within its
which
the First
scope speech
clearly protected by
sweeps
Amendment. He
statute is
broad that
so
who
doctor
says
an abortion is
advises a
that
husband who
appropriate,
patient
abortion,
his wife
secure
lecturer who advo
encourages
all
to abortion” would
cates
misdemeanors.
guilty
“right
that
lacks
General
to assert
Attorney
argues
Bigelow
standing
of others.
on DeFebio v. County
Relying
hypothetical
Va.
100 S.E.2d
Board,
(1957),
School
states that
rule is that
one
chal-
General
who
Attorney
applicable
of a statute must show that
he himself
constitutionality
lenges
or threatened with
its
has been
enforcement.
injury by
injured
that
does have
insists
he
relies
Owens
standing
upon
There,
v.
S.E.2d 477 (1971).
we
face,
its
because
on
overbroad,
held unconstitutional
the definition
of unlawful
§
as contained in
(c).
Code
18.1-254.1
assembly
General contended in that case that Owens lacked
Attorney
standing
said,
the statute.
challenge
citing
N.A.A.C.P.
Button,
(1963),
that
“where First
Amendment liberties
involved,
are
persons
non-priv-
engage
conduct are not
a statute under which
ileged
precluded
attacking
were convicted.” 211
638-39,
atVa.
341 U.S. Thus, where, here, a line can be drawn between commercial and non-commercial conduct and it clearly appears prohibited area, is in the commercial the actor does not have activity standing of those in the non-commercial rely upon hypothetical rights zone attack of a mounting legislative enactment. So assert the of doc- deny Bigelow standing tors, husbands, and lecturers.
For the reasons will trial court assigned, judgment affirmed.
Affirmed. I’Anson Cochran, JJ., dissenting.
We We conclude that dissent. 18.1-63 unconstitutionally vague In view and overbroad. our it is to decide whether the unnecessary is “commercial” a constitutional sense. See New event (1964). Times v. Sullivan, York any under the criminal as overbroad has to challenge standing Owens which he was convicted. does not the statute S.E.2d 477 purport within its any sweeps scope advertising only regulate of an abor “encourage[s] prompt[s] person or in other lecture, advertisement ... tion” any by “publication, 622 (1951), Alexandria, Breard v. manner.” For this reason ordinance which a decision which regulated validity upheld than their freedom solicitors rather the conduct of door-to-door limit freedom seeks to Section 18.1-63 here. speech, inapposite Moreover, no manner. broad speech vague impermissibly (an abortions between distinction is made oversight legal illegal amendment). remedied recently would reverse conviction.