Bigelow v. Virginia

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421 U.S. 809 (1975), argued 18 Dec. 1974, decided 16 June 1975 by vote of 7 to 2; Blackmun for the Court, Rehnquist, joined by White, in dissent. In February 1971 the Virginia Weekly of Charlottesville published an advertisement for the Women's Pavilion, a New York City for-profit organization that assisted women in obtaining abortions. The Weekly's editor, Jeffrey C. Bigelow, was prosecuted for violating a Virginia statute that made it a misdemeanor to publish or “encourage or prompt the procuring of abortion.” Bigelow argued that the statute was unconstitutionally overbroad and a violation of his free press rights under the First Amendment. But the Virginia courts declared the statute a proper consumer protection measure, and, relying on U.S. Supreme Court precedent, held that Bigelow lacked standing to raise the over-breadth issue because the “commercial” nature of the advertisement rendered it unprotected by the First Amendment.

In 1942 the Supreme Court had held that “commercial speech” was unprotected because it was more like an economic inducement than the exposition of ideas (Valentine v. Chrestenson). But the expansion of First Amendment freedoms in the intervening decades, and the fact that the Supreme Court had recently made abortion a constitutionally protected right (Roe v. Wade, 1973), compelled Justice Harry Blackmun (the author of Roe) and the Court to reconsider the commercial speech doctrine. The Court thus ruled that the Weekly's advertisement merited First Amendment protection because it conveyed truthful information about a matter of significant public interest.

Bigelow set the stage for the Court's decision the next year formally to give some constitutional protection to commercial speech (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 1976). Today commercial speech is considered a “quasi-protected” category of expression. The justices reaffirmed this principle in 44 Liquormart, Inc. v. Rhode Island (1996) when they struck down a state ban on the truthful, nonmisleading advertising of the price of alcoholic beverages.

Donald A. Downs

Subjects: Law.

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