Bigelow v. Virginia: Difference between revisions
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{{Infobox SCOTUS case |
{{Infobox SCOTUS case |
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|Litigants=Bigelow v. |
|Litigants=Bigelow v. Virginia |
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|ArgueDate=December 18 |
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|ArgueYear=1974 |
|ArgueYear=1974 |
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'''''Bigelow v. |
'''''Bigelow v. Virginia''''', 421 U.S. 809 (1975),<ref name=":1">''Bigelow v. Virginia'', [https://scholar.google.com/scholar_case?case=4759538477634429547&q=421+U.S.+809+&hl=en&as_sdt=6,39 421 U.S. 809] (S. Ct., 1975).</ref> was a [[Supreme Court of the United States|United States Supreme Court]] decision that established [[First Amendment to the United States Constitution|First Amendment]] protection for [[commercial speech]].<ref name=":0">{{Cite book |last=Greenhouse |first=Linda |title=Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey |publisher=[[Times Books]] |year=2006 |isbn=9780805080575 |pages=116-119}}</ref> The ruling is an important precedent on challenges to government regulation of [[advertising]], determining that such publications qualify as speech under the First Amendment. |
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== Background == |
== Background == |
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In 1960, Virginia passed a statute, which in turn was an updated version of a law from 1878, that charged anyone |
In 1960, Virginia passed a statute, which in turn was an updated version of a law from 1878, that charged anyone advertising a service that "encourage[s] or prompt[s] the procuring of [[abortion]] or miscarriage" with a [[misdemeanor]].<ref>Va. Code Ann. § 18.1-63 (1960).</ref> In 1971, the ''Virginia Weekly'' of [[Charlottesville, Virginia|Charlottesville]] published an advertisement for an abortion service provider in New York City. The newspaper's editor, Jeffrey C. Bigelow, was charged with a misdemeanor under the statute.<ref name=":1" /> |
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Bigelow was convicted by a local court and was charged a fine. He challenged the conviction at the [[Virginia Supreme Court]] with a [[Freedom of speech|free speech]] argument, though the court rejected this argument and upheld Bigelow's conviction.<ref>''Bigelow v. Virginia'', 191 S.E. 2d 173 (Va. S. Ct., 1972).</ref> The court's rationale was that per precedent, commercial advertisements received lesser free speech protection |
Bigelow was convicted by a local court and was charged a fine. He challenged the conviction at the [[Virginia Supreme Court]] with a [[Freedom of speech|free speech]] argument, though the court rejected this argument and upheld Bigelow's conviction.<ref>''Bigelow v. Virginia'', 191 S.E. 2d 173 (Va. S. Ct., 1972).</ref> The court's rationale was that per precedent, commercial advertisements received lesser free speech protection than personal or political speech.<ref name=":0" /> |
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Bigelow, now represented by the [[American Civil Liberties Union]], appealed the ruling to the [[Supreme Court of the United States|United States Supreme Court]] in 1972. |
Bigelow, now represented by the [[American Civil Liberties Union]], appealed the ruling to the [[Supreme Court of the United States|United States Supreme Court]] in 1972. |
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== Opinion of the court == |
== Opinion of the court == |
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At the time of Bigelow's conviction, [[abortion]] was not illegal in |
At the time of Bigelow's conviction, [[abortion]] was not illegal in either Virginia (where the advertisement was published) or New York (the location of the business featured in the ad), though Virginia had attempted to restrict advertising that recommended or enabled the procedure.<ref name=":1" /> Since abortion services were at issue in Bigelow's case, the U.S. Supreme Court deferred on the case because ''[[Roe v. Wade]]'' was pending at the time. The court [[Remand (court procedure)|remanded]] the case to Virginia for reconsideration in light of recent events, but the Virginia Supreme Court upheld Bigelow's misdemeanor conviction again. Bigelow appealed to the U.S. Supreme Court again, and with ''Roe v. Wade'' having been decided in the interim, the high court took the case in 1975.<ref name=":0" /> |
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The high court ruled 7''–''2 in favor of Bigelow and overturned his conviction on [[First Amendment to the United States Constitution|First Amendment]] grounds. The majority opinion was written by Justice [[Harry Blackmun]], |
The high court ruled 7''–''2 in favor of Bigelow and overturned his conviction on [[First Amendment to the United States Constitution|First Amendment]] grounds. The majority opinion was written by Justice [[Harry Blackmun]], who argued that the First Amendment prevents states from prohibiting advertisements for products or services that are legal in the state where such an ad is published.<ref name=":0" /> |
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The court found that the Virginia statute was [[Overbreadth doctrine|overbroad]] because it targeted persons who merely discussed or advertised objectionable conduct without engaging in that conduct themselves, while abortion itself was legal in Virginia at the time.<ref name=":1" /> Meanwhile, in the wake of the ''Roe v. Wade'' ruling in 1973, the court noted that the Virginia statute attempted to outlaw [[Freedom of speech|political speech]] on an issue (abortion) of clear public interest, while that procedure had since been declared a constitutional right in its own regard.<ref name=":1" /> |
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Furthermore, the Supreme Court ruled that [[commercial speech]], at least for products or services that are legal, qualifies for [[First Amendment to the United States Constitution|First Amendment]] protection. In Blackmun's words, referring to newspaper ads in particular, "speech is not stripped of First Amendment protection merely because it appears in that form."<ref name=":1" /> This finding was supported by precedents such as ''[[New York Times Co. v. Sullivan|New York Times v. Sullivan]]''.<ref>''New York Times Co. v. Sullivan'', [https://scholar.google.com/scholar_case?case=10183527771703896207&q=421+U.S.+809+&hl=en&as_sdt=6,39 376 U.S. 254] (S. Ct., 1964).</ref> Per another precedent, [[Ginzburg v. United States|''Ginzburg'' v. ''U.S.'']],<ref>''Ginzburg v. United States'', [https://scholar.google.com/scholar_case?case=12404909807077661368&q=421+U.S.+809+&hl=en&as_sdt=6,39 383 U.S. 463] (S. Ct., 1966).</ref> "The existence of 'commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment'."<ref name=":1" /> |
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== Impact and subsequent developments == |
== Impact and subsequent developments == |
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Before ''Bigelow v. Virginia'', the American judiciary had only addressed limited disputes over government regulation of [[commercial speech]], and there had been few discussions of whether this wide category of speech qualified for protection under the [[First Amendment to the United States Constitution|First Amendment]].<ref name=":0" /> The ''Bigelow'' ruling has become a crucial component of what was later dubbed the commercial speech doctrine, in which advertisements can face limited restrictions in the event of describing illegal products and services, and hence somewhat less protection that personal speech, but otherwise advertisements are considered to be speech under the First Amendment.<ref>{{Cite journal |last=Newton |first=Sally H. |date=1976 |title=The Commercial Speech Doctrine: Bigelow v. Virginia |journal=Urban Law Annual |volume=12 |pages=225-236 |via=HeinOnline}}</ref> |
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Court precedents had long considered advertising mere "[[commercial speech]]," giving it little, if any, protection under the First Amendment.<ref name=":2" /> |
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Subsequently, governments may have a reason to restrict a particular ad on a case-by-case basis, but that restriction must be justified via a [[Government interest|compelling interest]],<ref>{{Cite journal |last=Merrill |first=Thomas W. |date=Fall 1976 |title=First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine |journal=University of Chicago Law Review |volume=44 |issue=1 |pages=236 |via=HeinOnline}}</ref> while the restriction must be a reasonable means for attaining that goal.<ref>{{Cite journal |last=Gordon |first=Philip J. |date=Spring 1994 |title=Reasonable Fit Required between Interests and Means When Regulating Commercial Speech |journal=Suffolk University Law Review |volume=28 |issue=1 |pages=185-188 |via=HeinOnline}}</ref> The ruling has also been cited as an important precedent on the right of the public to receive information in the form of advertising, particularly for products or services that are politically controversial or for which precise information is needed.<ref>{{Cite journal |last=Summer |first=David B. |date=Fall 1976 |title=The Commercial Speech Doctrine and the Consumers' Right to Receive |journal=Washburn Law Journal |volume=16 |issue=1 |pages=200 |via=HeinOnline}}</ref> |
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''Bigelow'' was used as precedent in a case in the 1975 term of the Court. In ''[[Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council]]'', Blackmun struck down a state law that prohibited pharmacists from advertising the prices of prescription drugs. Justice [[William Rehnquist]] was the only dissenter.<ref>Greenhouse, p. 120.</ref> |
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== References == |
== References == |
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Latest revision as of 19:08, 16 February 2024
| Bigelow v. Virginia | |
|---|---|
 | |
| Argued December 18, 1974 Decided June 16, 1975 | |
| Full case name | Bigelow v. Commonwealth of Virginia |
| Citations | 421 U.S. 809 (more) 95 S. Ct. 2222; 44 L. Ed. 2d 600; 1975 U.S. LEXIS 73; 1 Media L. Rep. 1919 |
| Case history | |
| Prior | Conviction upheld by Virginia Supreme Court, 213 Va. 191, 191 S.E. 2d 173 (1972). |
| Holding | |
| The First Amendment prevents states from prohibiting advertisements of clearly legal products or conduct. | |
| Court membership | |
| |
| Case opinions | |
| Majority | Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell |
| Dissent | Rehnquist, joined by White |
| Laws applied | |
| U.S. Const., Amends. I and XIV | |
Bigelow v. Virginia, 421 U.S. 809 (1975),[1] was a United States Supreme Court decision that established First Amendment protection for commercial speech.[2] The ruling is an important precedent on challenges to government regulation of advertising, determining that such publications qualify as speech under the First Amendment.
Background
[edit]In 1960, Virginia passed a statute, which in turn was an updated version of a law from 1878, that charged anyone advertising a service that "encourage[s] or prompt[s] the procuring of abortion or miscarriage" with a misdemeanor.[3] In 1971, the Virginia Weekly of Charlottesville published an advertisement for an abortion service provider in New York City. The newspaper's editor, Jeffrey C. Bigelow, was charged with a misdemeanor under the statute.[1]
Bigelow was convicted by a local court and was charged a fine. He challenged the conviction at the Virginia Supreme Court with a free speech argument, though the court rejected this argument and upheld Bigelow's conviction.[4] The court's rationale was that per precedent, commercial advertisements received lesser free speech protection than personal or political speech.[2]
Bigelow, now represented by the American Civil Liberties Union, appealed the ruling to the United States Supreme Court in 1972.
Opinion of the court
[edit]At the time of Bigelow's conviction, abortion was not illegal in either Virginia (where the advertisement was published) or New York (the location of the business featured in the ad), though Virginia had attempted to restrict advertising that recommended or enabled the procedure.[1] Since abortion services were at issue in Bigelow's case, the U.S. Supreme Court deferred on the case because Roe v. Wade was pending at the time. The court remanded the case to Virginia for reconsideration in light of recent events, but the Virginia Supreme Court upheld Bigelow's misdemeanor conviction again. Bigelow appealed to the U.S. Supreme Court again, and with Roe v. Wade having been decided in the interim, the high court took the case in 1975.[2]
The high court ruled 7–2 in favor of Bigelow and overturned his conviction on First Amendment grounds. The majority opinion was written by Justice Harry Blackmun, who argued that the First Amendment prevents states from prohibiting advertisements for products or services that are legal in the state where such an ad is published.[2]
The court found that the Virginia statute was overbroad because it targeted persons who merely discussed or advertised objectionable conduct without engaging in that conduct themselves, while abortion itself was legal in Virginia at the time.[1] Meanwhile, in the wake of the Roe v. Wade ruling in 1973, the court noted that the Virginia statute attempted to outlaw political speech on an issue (abortion) of clear public interest, while that procedure had since been declared a constitutional right in its own regard.[1]
Furthermore, the Supreme Court ruled that commercial speech, at least for products or services that are legal, qualifies for First Amendment protection. In Blackmun's words, referring to newspaper ads in particular, "speech is not stripped of First Amendment protection merely because it appears in that form."[1] This finding was supported by precedents such as New York Times v. Sullivan.[5] Per another precedent, Ginzburg v. U.S.,[6] "The existence of 'commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment'."[1]
Impact and subsequent developments
[edit]Before Bigelow v. Virginia, the American judiciary had only addressed limited disputes over government regulation of commercial speech, and there had been few discussions of whether this wide category of speech qualified for protection under the First Amendment.[2] The Bigelow ruling has become a crucial component of what was later dubbed the commercial speech doctrine, in which advertisements can face limited restrictions in the event of describing illegal products and services, and hence somewhat less protection that personal speech, but otherwise advertisements are considered to be speech under the First Amendment.[7]
Subsequently, governments may have a reason to restrict a particular ad on a case-by-case basis, but that restriction must be justified via a compelling interest,[8] while the restriction must be a reasonable means for attaining that goal.[9] The ruling has also been cited as an important precedent on the right of the public to receive information in the form of advertising, particularly for products or services that are politically controversial or for which precise information is needed.[10]
References
[edit]- ^ a b c d e f g Bigelow v. Virginia, 421 U.S. 809 (S. Ct., 1975).
- ^ a b c d e Greenhouse, Linda (2006). Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey. Times Books. pp. 116–119. ISBN 9780805080575.
- ^ Va. Code Ann. § 18.1-63 (1960).
- ^ Bigelow v. Virginia, 191 S.E. 2d 173 (Va. S. Ct., 1972).
- ^ New York Times Co. v. Sullivan, 376 U.S. 254 (S. Ct., 1964).
- ^ Ginzburg v. United States, 383 U.S. 463 (S. Ct., 1966).
- ^ Newton, Sally H. (1976). "The Commercial Speech Doctrine: Bigelow v. Virginia". Urban Law Annual. 12: 225–236 – via HeinOnline.
- ^ Merrill, Thomas W. (Fall 1976). "First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine". University of Chicago Law Review. 44 (1): 236 – via HeinOnline.
- ^ Gordon, Philip J. (Spring 1994). "Reasonable Fit Required between Interests and Means When Regulating Commercial Speech". Suffolk University Law Review. 28 (1): 185–188 – via HeinOnline.
- ^ Summer, David B. (Fall 1976). "The Commercial Speech Doctrine and the Consumers' Right to Receive". Washburn Law Journal. 16 (1): 200 – via HeinOnline.
External links
[edit]- Text of Bigelow v. Commonwealth of Virginia, 421 U.S. 809 (1975) is available from: Findlaw Google Scholar Justia