|Bigelow v. Virginia
[ Blackmun ]
[ Rehnquist ]
Bigelow v. Virginia
APPEAL FROM THE SUPREME COURT OF VIRGINIA
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins, dissenting.
The Court's opinion does not confront head-on the question which this case poses, but makes contact with [p830] it only in a series of verbal sideswipes. The result is the fashioning of a doctrine which appears designed to obtain reversal of this judgment, but at the same time to save harmless from the effects of that doctrine the many prior cases of this Court which are inconsistent with it.
I am in agreement with the Court, ante at 817-818, that Virginia's statute cannot properly be invalidated on grounds of overbreadth, [n1] given that the sole prosecution which has ever been brought under this now substantially altered statute is that now in issue. "It is the law as applied that we review, not the abstract, academic questions which it might raise in some more doubtful case." Saia v. New York, 334 U.S. 558, 571 (1948) (Jackson, J., dissenting).
Since the Court concludes, apparently from two lines of the advertisement, ante at 812, that it conveyed information of value to those interested in the "subject matter or the law of another State and its development" and to those "seeking reform in Virginia," ante at 822, and since the and relates to abortion, elevated to constitutional stature by the Court, it concludes that this advertisement is entitled to something more than the limited constitutional protection traditionally accorded commercial advertising. See ante at 825 n. 10. Although recognizing that "[a]dvertising, like all public expression, may be subject to reasonable regulation that serves a legitimate public interest," ante at 826, the Court, for reasons not entirely clear to me, concludes that Virginia's interest is of "little, if any, weight." Ante at 828. [p831]
If the Court's decision does, indeed, turn upon its conclusion that the advertisement here in question was protected by the First and Fourteenth Amendments, the subject of the advertisement ought to make no difference. It will not do to say, as the Court does, that this advertisement conveyed information about the "subject matter or the law of another State and its development" to those "seeking reform in Virginia," and that it related to abortion, as if these factors somehow put it on a different footing from other commercial advertising. This was a proposal to furnish services on a commercial basis, and since we have always refused to distinguish for First Amendment purposes on the basis of content, it is no different from an advertisement for a bucket shop operation or a Ponzi scheme which has its headquarters in New York. If Virginia may not regulate advertising of commercial abortion agencies because of the interest of those seeking to reform Virginia's abortion laws, it is difficult to see why it is not likewise precluded from regulating advertising for an out-of-state bucket shop on the ground that such information might be of interest to those interested in repealing Virginia's "blue sky" laws.
As a threshold matter, the advertisement appears to me, as it did to the courts below, to be a classic commercial proposition directed toward the exchange of services, rather than the exchange of ideas. It was apparently also so interpreted by the newspaper which published it, which stated in apparent apology in its following issue that the
"Weekly collective has since learned that this abortion agency . . . as well as a number of other commercial groups are charging women a fee for a service which is done free by Women's Liberation, Planned Parenthood, and others."
213 Va.191, 194, 191 S.E.2d 173, 175 (1972). Whatever slight factual content the advertisement may contain, and [p832] whatever expression of opinion may be laboriously drawn from it, does not alter its predominantly commercial content.
If that evasion were successful, every merchant who desires to broadcast . . . need only append a civic appeal, or a moral platitude, to achieve immunity from the law's command.
Valentine v. Chrestensen, 316 U.S. 52, 55 (1942). See, e.g., Ginzburg v. United States, 383 U.S. 463, 474 n. 17 (1966). I am unable to perceive any relationship between the instant advertisement and that, for example, in issue in New York Times Co. v. Sullivan, 376 U.S. 254, 292 (1964). Nor am I able to distinguish this commercial proposition from that held to be purely commercial in Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.S. 376 (1973). As the Court recognizes, ante at 819-821, a purely commercial proposal is entitled to little constitutional protection.
Assuming arguendo that this advertisement is something more than a normal commercial proposal, I am unable to see why Virginia does not have a legitimate public interest in its regulation. The Court apparently concedes, ante at 825 n. 10, and our cases have long held, that the States have a strong interest in the prevention of commercial advertising in the health field -- both in order to maintain high ethical standards in the medical profession and to protect the public from unscrupulous practices. See, e.g., Semler v. Dental Examiners, 294 U.S. 608, 612 (1935); Williamson v. Lee Optical Co., 348 U.S. 483, 490-491 (1955); North Dakota Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156 (1973). And the interest asserted by the Supreme Court of Virginia in the Virginia statute was the prevention of commercial exploitation of those women who elect to have an abortion:
It is clearly within the police power of the state to enact reasonable measures to ensure that pregnant [p833] women in Virginia who decide to have abortions come to their decisions without the commercial advertising pressure usually incidental to the sale of a box of soap powder. And the state is rightfully interested in seeing that Virginia women who do decide to have abortions obtain proper medical care and do not fall into the hands of those interested only in financial gain, and not in the welfare of the patient.
213 Va. at 196, 191 S.E.2d at 176.
The concern of the Virginia Supreme Court was not a purely hypothetical one. As the majority notes, ante at 822-823, n. 8, although New York, at the time of this advertisement, allowed profitmaking abortion referral agencies, it soon thereafter passed legislation prohibiting commercial advertisement of the type here in issue. The court in S. P. S. Consultants, Inc. v. Lefkowitz, 333 F.Supp. 1373, 1378 (SDNY 1971), quoted the author of that legislation on the reasons for its passage:
Because New York State has the most liberal abortion statute within the Continental United States, thousands of women from all over the country are coming into New York State. . . . [M]ost of these women came here through referral agencies who advertise nationally. These agencies, for a sizeable fee, make all abortion arrangements for a patient. We also learned that certain hospitals give discounts to these lucrative, profit-making organizations. Thus, at the expense of desperate, frightened women, these agencies are making a huge profit -- some, such a huge profit that our Committee members were actually shocked.
See, e.g., State v. Mitchell, 66 Misc.2d 514, 321 N.Y.S.2d 756 (1971); State v. Abortion Information Agency, Inc., 69 Misc.2d 825, 323 N.Y.S.2d 597 (1971). [p834]
Without denying the power of either New York or Virginia to prohibit advertising such as that in issue where both publication of the advertised activity and the activity itself occur in the same State, the Court instead focuses on the multistate nature of this transaction, concluding that a State
may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State.
Ante at 824-825. And the Court goes so far as to suggest that it is an open question whether a State may constitutionally prohibit an advertisement containing an invitation or offer to engage in activity which is criminal both in the State of publication and in the proposed situs of the crime. See ante at 828 n. 14.
The source of this rigid territorial limitation on the power of the States in our federal system to safeguard the health and welfare of their citizens is not revealed. It is surely not to be found in cases from this Court. [n2] [p835] Beginning. at least with our decision in Delamater v. South Dakota, 205 U.S. 93, 100 (1907), we have consistently recognized that, irrespective of a State's power to regulate extraterritorial commercial transactions in which its citizens participate, it retains an independent power to regulate the business of commercial solicitation and advertising within its borders. Thus, for example, in Head v. New Mexico Board, 374 U.S. 424 (1963), we upheld the power of New Mexico to prohibit commercial advertising by a New Mexico radio station of optometric services provided in Texas. Mr. JUSTICE BRENNAN, concurring in that opinion, noted that a contrary result might well produce
a "no-man's land" . . . in which there would be at best selective policing of the various advertising abuses and excesses which are now very extensively regulated by state law.
Were the Court's statements taken literally, they would presage a standard of the lowest common denominator for commercial ethics and business conduct. Securities issuers could circumvent the established blue sky laws of States which had carefully drawn such laws for the protection of their citizens by establishing as a situs for transactions those States without such regulations, while spreading offers throughout the country. Loan sharks might well choose States with unregulated small loan industries, luring the unwary with immune [p836] commercial advertisements. And imagination would place the only limit on the use of such a "no-man's land" together with artificially created territorial contacts to bilk the public and circumvent long-established state schemes of regulation.
Since the Court saves harmless from its present opinion our prior cases in this area, ante at 825 n. 10, it may be fairly inferred that it does not intend the results which might otherwise come from a literal reading of its opinion. But solely on the facts before it, I think the Court today simply errs in assessing Virginia's interest in its statute because it does not focus on the impact of the practices in question on the State. Cf. Young v. Masci, 289 U.S. 253 (1933). Although the commercial referral agency, whose advertisement in Virginia was barred, was physically located outside the State, this physical contact says little about Virginia's concern for the touted practices. Virginia's interest in this statute lies in preventing commercial exploitation of the health needs of its citizens. So long as the statute bans commercial advertising by publications within the State, the extraterritorial location at which the services are actually provided does not diminish that interest.
Since the statute in question is a "reasonable regulation that serves a legitimate public interest," ante at 826, I would affirm the judgment of the Supreme Court of Virginia.
1. The Court, ante at 817, states that the Virginia Supreme Court placed no limiting interpretation on its statute and that it implied that the statute might apply to doctors, husbands, and lecturers. The Court is in error: the Virginia Supreme Court stated that it would not interpret the statute to encompass such situations. 213 Va.191, 198, 191 S.E.2d 173, 177 (1972).
2. The Court, ante at 822-823, relies on Huntington v. Attrill, 146 U.S. 657, 669 (1892), for its major premise that Virginia could not regulate the relations of the advertiser with its residents, since these occurred in New York. To the extent that the Court reads Huntington to impose a rigid and unthinking territorial limitation, whose constitutional source is unspecified, on the power of the States to regulate conduct, it is plainly wrong. The passage referred to by the Court in the Huntington opinion is dictum, and appears to be a statement of then-prevalent common law rules, rather than a constitutional holding. And the attempt to impose such a rigid limitation on the power of the States was first rejected by Mr. Justice Holmes, writing for the Court in Strassheim v. Daily, 221 U.S. 280, 285 (1911):
Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect. . . .225 U.S. 347, 363 (1912), observed that "this must be so if we would fit the laws and their administration to the acts of men and not be led away by mere ‘bookish theorick.'" See, e.g., Skiriotes v. Florida, 313 U.S. 69, 74-75 (1941); Ford v. United States, 273 U.S. 593, 620-621 (1927). To the extent that the Court's conclusion that Virginia has a negligible interest in its statute proceeds from the assumption that the State was without power to regulate the extraterritorial activities of the advertiser involving Virginia residents, it is quite at war with our prior cases.