421 U.S. 809 (1975)
In 1971 Jeffrey C. Bigelow served as a director, managing editor, and responsible officer of the Virginia Weekly, a newspaper published in Charlottesville and circulated in Albemarle County with particular focus on the University of Virginia campus.1 On February 8, 1971, Volume V, Number 6 of the newspaper carried on page 2 an advertisement placed by the Women's Pavilion of New York City.2
The advertisement stated that abortions were now legal in New York, that there were no residency requirements, and that the organization offered immediate placement in accredited hospitals and clinics at low cost; it supplied the address 515 Madison Avenue, New York, N.Y. 10022, the telephone numbers (212) 371-6670 and (212) 371-6650, and the assurance that the service was available seven days a week, strictly confidential, and that the organization would make all arrangements and provide information and counseling.3
On May 13, 1971, Bigelow was charged with violating Va. Code Ann. § 18.1-63 (1960).4 He was convicted in the County Court of Albemarle County, appealed, and after a de novo nonjury trial in the Circuit Court of Albemarle County in July 1971 was again convicted and sentenced to pay a $500 fine with $350 suspended conditioned on no further violation.5 At that trial the evidence consisted of stipulated facts, an excerpt from the February 8, 1971 issue containing the advertisement, and the June 1971 issue of Redbook magazine containing abortion information and distributed in Virginia and Albemarle County.6
The Supreme Court of Virginia granted review and affirmed the conviction by a 4-2 vote in 1972.7 Bigelow appealed to the United States Supreme Court, which vacated the judgment and remanded for further consideration in light of Roe v. Wade and Doe v. Bolton; on remand the Virginia Supreme Court again affirmed in 1973.8 The United States Supreme Court noted probable jurisdiction in 1974.9
Whether the appellant had standing to challenge the Virginia statute on First Amendment overbreadth grounds?10
A defendant possesses standing to challenge a statute on First Amendment overbreadth grounds without demonstrating that his own conduct could be regulated by a more narrowly drawn statute.11 This standing exists due to the danger of tolerating penal statutes susceptible of sweeping and improper application in the area of First Amendment freedoms.12
Yes. Bigelow's conviction for publishing the advertisement in the Virginia Weekly established a claim of specific present objective harm rather than a subjective chill.13 The Supreme Court of Virginia denied him standing on the basis that his activity was of a purely commercial nature.14 The established facts of the conviction and the statute's application illustrate the potential for improper applications to others such as doctors or lecturers.15
The Court therefore determined that the Virginia courts erred in denying standing without considering whether the overbreadth was substantial.16
Bigelow possessed standing to challenge the statute on overbreadth grounds.17
Related opinions on this issue
Joined by Justice White
Justice Rehnquist agreed with the Court that the statute could not properly be invalidated on overbreadth grounds.18 He stressed that the sole prosecution ever brought under the now substantially altered statute was the one at issue.19 Rehnquist emphasized that it is the law as applied that the Court reviews, not abstract academic questions the statute might raise in more doubtful cases.20
This approach, he argued, prevents the Court from addressing hypothetical applications that were not presented in the record before it.21
Whether the First Amendment protected the appellant's publication of the advertisement against application of the Virginia statute?22
The First Amendment protects speech that appears in the form of paid commercial advertising.23 Protection extends when the advertisement contains factual material of public interest.24 It also applies when the advertisement concerns services that are legal in another state.25 A state lacks authority to prohibit publication of such information to shield its citizens from information about lawful activities outside its borders.26
Yes. The advertisement published in Bigelow's newspaper on February 8, 1971, conveyed information of potential interest and value.27 This included the legality of abortions in New York and the availability of services there.28 The information pertained to constitutional interests recognized in Roe v. Wade.29
Virginia could not regulate the New York services or prevent its residents from traveling there.30 The statute as applied to the publisher infringed protected speech.31 No claim existed that the advertisement was deceptive or furthered criminal activity in Virginia.32 The trial evidence included the advertisement and the Redbook issue distributed in the state.33
The First Amendment protected Bigelow's publication of the advertisement, rendering the application of the Virginia statute unconstitutional.34
Related opinions on this issue
Joined by Justice White
Justice Rehnquist dissented from the holding that the advertisement received First Amendment protection beyond that accorded commercial speech.35 He viewed the advertisement as a classic commercial proposition directed toward the exchange of services rather than the exchange of ideas.36 Rehnquist maintained that Virginia had a legitimate public interest in regulating such advertising in the health field.37
The state's interest was to protect its citizens from commercial exploitation and to maintain high ethical standards in the medical profession.38 He argued that the multistate nature of the transaction did not diminish Virginia's concern for the practices' impact on its citizens.39 Rehnquist would have affirm the judgment of the Supreme Court of Virginia.40