Brief for Appellant — Bigelow v. Virginia

Supreme Court, U. S.

FiLED

SEP 18 1974

In THE MICHAEL BOQAK JR_OLERK

Supreme Court of the United States

Ocroper Term, 1974

No. 73-1200

———<j>—

JerrreY Cote BiceLow,

Appellant,

—_—Ver

COMMONWEALTH OF VIRGINIA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF VIRGINIA

BRIEF FOR APPELLANT

Me.vin L. Weir

Joe, M. Gora

JupITH Mears

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Joun C. Lowe

F. Guturie Gorpon, III

American Civil Liberties

Union of Virginia

1111 West Main Street

Charlottesville, Virginia

Attorneys for Appellant

ee

+ OR emery =

Opinions Below

Jurisdiction

Statute Involved..

Question Presented

Statement of the Case

Summary of Argument

ARGUMENT

I.

Il.

SECTION 18.1-63, ON ITS FACE

OR AS APPLIED IN THIS CASE,

VIOLATES THE FREE PRESS GUARAN-

TEE OF THE FIRST AMENDMENT......

The advertisement is not an

integral part of action.........

The State's authority to regu-

late in the medical health

field cannot save the statute

or sustain the conviction.......

THE ADVERTISEMENT IN THIS CASE

WAS NOT "PURELY COMMERCIAL"

Space ceceeceoeees “ne eonneeee *enerenreeee

Page

15

ii

III. SECTION 18.1-63 IS OVERBROAD

IN VIOLATION OF THE FIRST

AMENDMENT... cccccscccesecscsesececs

A. Appellant has standing to

u h verb h of th

statute. *eeeeeeeeeeneeeeeeeeeeee #

CONCLUSION. .ccccccccccseceseccssesesees

Page

35

39

42

iii

TABLE OF AUTHORITIES

Page

Cases:

th niversit

de v. Attor-

of California at Riverside

ney General, 368 F.Supp. 11 (D,.C.Cal.

1 PPT TTITITITrersesrrirerersrisree 28

Atlanta Cooperative News Project v.

United States Postal Service, 350

F. Supp. 234 (N.D.Ga. 1972) ..cccees 2029

nzhaff v. F.C.C,, 405 F.2d 1082

(D,.C,Cir.1968),cert. denied, sub non.,

Tobacco Institute Inc. v. F,C.C.,

396 U.S. 842 rrr rT 32

Bates v. Little Rock, 361 U.S. 516

Oo FPP ErTTTTTTrTTiTrreyirTe 18

Bigelow v. Virginia, 413 U.S. 909

0 Pr TTrTTTrrrrrrir ee 7

Brandenburg v. Qhio, 395 U.S. 444

Sn 64606 606666006606000 666860600 00OuF

Breard v. Alexandria, 341 U.S, 622

Oh | Pr rrrrrrTTTITTTIiTeTfTireries: |.

Bridges v. California, 314 U.S, 252

|) pr rrTTTrTTrTTirrTT rt ll

iv

Page

Broadrick v. Oklahoma, 413 U.S.

601 TAOTS) ccccccccccocceeccee he dbe ae. 80

Butts v. Curtis Publish

388 U.S. 130 SET 6 6060665666666060 12

Cammarano v. United States

358 Walle 498 [ne 6 6e6666eeeeeeeees 33

Capital Broadcasting Co. v. Mitchell,

333 F.Supp. 582 (D.D.C. 1971), aff'd

sub nom., Capital Broadcasting Co.

et al. v. Acting Attorney General,

et al., 405 U.S. 1000 (1972)........ 31

Cohen v. California

403 oF 15 Duet 6 660666606060680666 36

Cox v. Louisiana

379 U.S. 536 (1965) .....eeeeeeeeee 36,38

Craig v. Harney

331 U.8. 367 Dn 6066060006006866% ll

Davis v. United States, 42 U.S.L.W,

4857 (June ll, 6 466% 66666b.60086 20

Doe v. Bolton, 410 U.S, 179 (1973).1920,23

Dun & Bradstreet, Inc. v. Grove,

404 U.S. 898 [PEP eseeceeeseeseoecs 34

Eisenstadt v. Baird,

405 U.S. 438 0 a 17

Page

Gertz v. Welch, Inc,

42 U.S.L.W. 5123 (June 25, 1974)..... 12

Giboney v. Empire Storage & Ice Co.

336 U.S. 490 TROOOT cocccceceseceeeees 16

Ginzburg v. United States

rs Ge We navedcedeccnseuces 0

ng v. Wilson

405 U.S. 518 TESTS) coccccecoccceeeoes 36

Grayned v. City of Rockford

408 U.S. 104 TRUSS coceccecesooscoceweee

Vv. nnecticut,

381 U.S. 479 (1965).....666-2+2,17,20, 25

v. American Press Co.,

297 U.S. 233 TROOP coccccecocooeeeees ll

Hiett v. United States,

415 F.2d 664 (1969), cert. denied

397 i -F 936 Co errr tT.

v. Attrill, 146 U.S. 657,

36 L.Ed. 1123 ERED eocoeccecoeosoees 23

Jamison v. Texas, 318 U.S. 413 (1943)... 27

Keyishian v. Board of Regents,

385 U.S. 589 +) rrr 36

Loving v. Virginia,

388 U.S. l TAOS Pcccccccccececeeeeees 20

vi

Page

Memorial Hospital v. Maricopa

County, et al., 42 U.S.L.W, 4277

(February 26, | PPPrrrrrrrrrTrrrrr 23

Miami Herald Publishing Co, v.

Tornillo, 42 U.S.L.W. 5098

(June 25, BOPED cocccoceesseeseeees 8,11,13

Mills v. Alabama, 384 U.S, 214

+) PPT TTTTiTTrrrrrrrrrisy 10

h Cc v. Burleson,

255 U.S. 407 |) | ere * ll

Mitchell Family Planning Inc. v.

, 335 F.Supp.

City of Royal Oak

738 (E.D.Mich, BUUEe coceeeccoceeseceeel

NAACP v. Button, 371 U.S. 415 (1963)....26

Near v. Minnesota,

283 = & 697 Dt? +sc00660060660600600

New York State Broadcasters Asso-

ciation v. United States, 414 F.2d

990 (2d Cir. 1969), cert. denied

396 U.S. 1061 0) aa |)

New York Times Co. v. Sullivan,

376 U.S. 254 (1964).......12,16,26,27,31

New York Times v. United States

See Was VE Cepanccctucsscossescsclll

Norton v. Shelby County

118 U.S. 425 CO ee

moto v. United States,

367 oF 290 Dn eé6e6eeese6eee0en00n

vii

Page

Pennekamp v. Florida,

328 U.S. 331 EROOED coceoccecescocesees 11

Pittsburgh Press Co. v. Pittsburgh

Commission on Human Relations,

423 U.6. 376 (A975) .ccccccccccccccs PRROIn

Plummer v. Columbus, _U.S,__ 42

U.S.L.W. 2222 (Oct. 16, LOTS) cocccecoes

d Lion Broadcasti Cc ne. V.

F.C.C,, 395 U.S. 367 (1969).....0000e,

Roe v. Wade, 410 U.S. 113 (1973).17,19,20,

Rosenbloom v. Metromedia

403 U.S. 29 +47) 5 SST

Shapiro v. Thompson, 394 U.S, 618 (1969),

Shelton v. Tucker, 364 U.S. 479 (1960),18,

Skinner v. Oklahoma, 316 U.S, 535 (1942).

ughter-Hou Cc ’

16 Wall. 36 CASTS) coccccccosescescotes

Smith v. California, 361 U.S, 147 (1959).

Thornhill v. Alabama,

310 U.S. 88 LADSO) coccccccccccccckhteaas

Toomer v. Witsell, 334 U.S, 385 (1948)..

Unit tes v. Ballard

322 U.S. 78 (RGSS ccocccccecevceecoooes

36

23

30

12

23

36

20

23

27

38

24

31

viii

Vv.

Page

467 F.2d 41 (9th Cir. 1972).......... 32

W iams

v. Preiser, 497 F.2d 337 (1974)...... 20

Valentine v. Ch nsen,

316 = ® 52 (1942) .....4....2++423-26,29, 30

Whitney v.

,

SUS U.B. FBT (OOST)cccccccccccccccee 2S

Constitutional Provisions:

United States Constitution

First Amendment..........cccece

Article IV Dii¢¢tedenedadoooce

Federal Statutes:

C. $1461]. nc cccccccccece

C. $1714. cecccccccccces

C. §1257(2) cc cecccees

C. $300L. cc ccccccccces

State Statutes:

Virginia Code, Section 18.1-62......

Virginia Code, Section 18.1-63...... passim

24

19

ix

Miscellaneous:

(1970) . cn cece ccc eee rcerecrereseeerese

Note, Freedom of Expression ina

Commercial Context, 78 Harv. L.

Rev. 1191 (1965) ...ccccccccccccevees

Note, Void-for-Vagueness Doctrine in

the Supreme Court, 109 U. Pa. L.

Rev. 67 (1960)... cecenicccceececces

Redish, The First Amendment in the

Market Place: Commercial Speech

and Values of Free Expression, 39

Geo. Wash. L. Rev. 429 (1971).......

Page

In The

Supreme Court of the United States

October Term, 1974

No. 73-1309

Jeffrey Cole Bigelow,

Appellant,

a

Commonwealth of Virginia,

Appellee.

On Appeal From the

Supreme Court of Virginia

BRIEF FOR APPELLANT

Opinions Below

The per curiam opinion of the Supreme

Court of Virginia, entered following the

remand from this Court, is reported at 214

Va. 341, 200 S.E.2d 680 and is set forth in

the Jurisdictional Statement [hereinafter

J.S.J], at pp. 2la-22a. The order of this

Court, vacating the earlier decision of the

court below and remanding for further consi-

deration, is reported at 413 U.S. 909 and is

set forth at J.S. 20a. The first opinion of the

Supreme Court of Virginia is reported at 213

Va. 191, 191 S.E.2d 173, and is set forth at

J.S. la-lla. The judgment of conviction in

the Circuit Court, Albemarle County, Virginia,

filed July 15, 1971,

Jurisdiction

The judgment of the Supreme Court of

Virginia was entered on November 26, 1973,

and a notice of appeal was filed in that court

on December 20, 1973. The Jurisdictional

Statement was filed on February 25, 1974 and

jurisdiction was noted on July 8, 1974. The

jurisdiction of the Supreme Court to review

this decision by appeal is conferred by 28

U.S.C. Section 1257(2). The following deci-

sion sustains the jurisdiction of this Court

to review the judgment by appeal in this

case: Griswold v. Connecticut, 381 U.S. 479

(1965).

Statute Involved

Virginia Code, Section 18.1-63:

If any person, by publication, lecture,

advertisement, or by the sale or circula-

tion of any publication, or in any other

manner, encourage or prompt the procuring

of abortion or miscarriage, he shall be

guilty of a mis-demeanor.

3

Question Presented

1. Whether Virginia Code Section 18.1-63,

prohibiting persons by "publication, lecture,

advertisement, or by the sale or circulation

of any publication, or in any other manner,"

from encouraging or prompting the procuring

of an abortion, violates the First Amendment

on its face or as applied in this case, and

is vague and overbroad and thereby violates

the First Amendment and the Due Process

Clause of the Fourteenth Amendment?

Statement of the Case*

The appellant, Jeffrey C. Bigelow, was a

director, managing editor, and responsible

officer of the Virginia Weekly, an underground

newspaper (J.S. 4a) published by the Virginia

Weekly Associates of Charlottesville, Virgi-

nia, and distributed in the Charlottesville

area.

On February 8, 1971, the Virginia Weekly,

Volume V, No. 6, was published and circulated

in Albemarle County, Virginia, and in parti-

cular on the grounds of the University of

Virginia. The publication and circulation

were the direct responsibility of the appel-

lant.

*The facts were stipulated by counsel in the

trial court and constituted the record on

appeal in the state courts. The stipulation

is contained in the separate Appendix [here-

inafter App.] at p. 3. A copy of the issue

of the newspaper which carried the

advertisement is part of the record.

4

The February 8 issue carried the following

advertisement on page 2:

UNWANTED PREGNANCY

LET US HELP YOU

Abortions are now legal in New York.

There are no residency requirements.

FOR IMMEDIATE PLACEMENT IN

ACCREDITED HOSPITALS AND

CLINICS AT LOW COST

Contact

WOMEN'S PAVILION

515 Madison Avenue

New York, New York 10022

or call any time

(212) 371-6670 or (212) 371-6650

Available 7 Days a Week

Strictly Confidential. We will make

all arrangements for you and help you

with information and counseling.

On May 13, 1971, the appellant was charged

with violating Section 18.1-63 of the Code

of Virginia which provided as follows:

If any person by publication, lecture,

advertisement, or by the sale or circu-

lation of any publication, or in any

other manner, encourage or prompt the

- 5

procuring of abortion or miscarriage

he shall be guilty of a misdemeanor.1/

In July, 1971, a non-jury trial on stipu-

lated facts was held in the Circuit Court for

Albemarle County. The only evidence consis-

ted of the stipulation, the advertisement,

and the June 1971 issue of Redbook Magazine,

distributed in Virginia and in Albemarle

County and containing abortion information

(App., p- 3). After overruling appellant's

objections to the constitutionality of the

statute, the Circuit Court found the appel-

lant guilty of violating the statute. He was

sentenced to pay a fine of $500.00, with

$350.00 of the fine suspended, conditional

upon appellant's not violating the statute in

the future (J.S. 15a).

Appellant timely noticed an appeal to the

Supreme Court of Virginia, assigning as error

the trial court's ruling that the statute ap-

plied to the advertisement, and the overruling

of appellant's First Amendment objections to

that statute (J.S. 16a-17a).

1/In 1972, that Section was amended to

read as follows:

If any person, by publication, lecture,

advertisement, or by the sale or circula-

tion of any publication, or through the use

of a referral agency for profit, or in any

other manner, encourage or promote the pro-

cessing of an abortion or miscarriage to

be performed in this State which is prohi-

bited under this article, he shall be guilty

ef a misdemeanor.

6

Thereafter, the Supreme Court of Virginia

granted review, and in a 4 to 2 decision up-

held the constitutionality of Section 18.1-63

and its applicability to the advertisement in

question. The Court first held that the ad-

vert.sement did encourage or prompt the pro-

curing of abortion within the meaning of the

statute, and was not merely informational

(J.S. 3a). Second, the Court ruled that the

prohibition of the statute could constitution-

ally be applied to the newspaper advertise-

ment because of the broad governmental power

"to regulate commercial advertising," parti-

cularly in the medical health field (J.s. 3a-

7a).2/ Finally, the Court ruled that the ap-

pellant lacked standing to challenge the fa-

cial overbreadth of the statute because his

First Amendment activity "was of a purely

commercial nature";

Thus, where, as here, a line can be

drawn between commercial and non-commer-

cial conduct and it clearly appears that

the prohibited activity is in the commer-

cial area, the actor does not have standing

to rely upon the hypothetical rights of

those in the non-commercial zone in mount-

ing an attack upon the constitutionality

of a legislative enactment. So we deny

2/ The stipulated facts contain no evidence to

Support the assumption below that both the ad-

vertisement and the advertiser were "commer-

cial." The court so assumed because of the text

of the advertisement.

5

Bigelow standing to assert the rights of

doctors, husbands, and lecturers. (J.S,.10a).

The two dissenters found it unnecessary

to determine whether the advertisement was

“commercial” in the constitutional sense, be-

cause they concluded that the appellant

clearly had standing "to challenge as over-

broad the criminal statute under which he was

convicted" and that the statute “seeks to li-

mit freedom of speech in a vague and impermis-

sibly broad manner." (J.S. lla).

Thereafter, the appellant filed a timely

Jurisdictional Statement with this Court (No.

72-932). On June 25, 1973, the Court entered

the following order:

Judgment vacated and case remanded to the

Supreme Court of Virginia for further con-

sideration in light of Roe v. Wade, 410

U.S. 113 (1973); and Doe v. Bolton, 410

U.S. 179 (1973). Bigelow v. Virginia, 413

U.S. 909 (1973).

On November 26, 1973, without calling for

further argument, the Supreme Court of Virginia

entered a per curiam opinion once again affirm-

ing the appellant's conviction. That Court

reasoned that the abortion decisions were ir-

relevant to the issues here, since neither

decision "mentioned the subject of abortion

advertising" (J.S. 22a). In the words of the

court below:

Bigelow's is a First Amendment case.

He was convicted not of abortion but for

running in his newspaper a commercial ad-

vertisement for a commercial abortion agen-

cy. We held that government regulation of

commercial advertising in the medical-health

field was not prohibited by the First Amend-

ment. We find nothing in the new decisions

of Roe v. Wade and Doe v. Bolton which in

any way affects our earlier view. So we

— affirm Bigelow's conviction (J.S.

2a).

Summary of Argument

I.

Newspapers are entitled to special pro-

tection under the First Amendment. Miami

Herald Publishing Co. v. Tornillo, 42 U.S.L.

W. 5098. No case since Milwaukee Publish-

ing Co. v. Burleson, 255 U.S. 407 (1921),

with the arguable exception of Pittsburgh

Press v. Pittsburgh Commission on Human Re-

lations, 413 U.S. 376 (1973), has upheld

the power of the federal or state govern-

ments to forbid the exercise of free edi-

torial choice or to punish’ the press

for exercising that choice. The conviction

of appellant for publishing the advertise-

ment in issue here, violates that principle.

A. The conviction must be reversed be-

cause publication of the advertisement is

protected by the clear and present danger

test and by the “imminent lawless action"

test of Brandenburg v. Ohio, 395 U.S, 444

9

(1969). The advertisement informed Virginia

residents that lawful abortions were avail-

able in New York state. It was not an inte-

gral part of action for there was ample

“opportunity for full discussion." Whitney

v. California, 274 U.S. 357, 377(1927). For

the same reasons, the statute is unconsti-

tutional on its face.

B. The state's authority to regulate in

the medical health field cannot save the

statute or sustain the conviction. That

asserted justification falls in face of the

First Amendment argument alone, which was

put forward above. However, there are three

additional constitutional interests which

must be added to the scales in appellant's

favor: the right of privacy, the right to

travel, and the limitations upon the power

of the states to penalize its citizens for

actions unlawful in the state of residency

but lawful where performed out-of-state.

Griswold v. Connecticut, 381 U.S. 479 (1965);

Slaughter-House Cases, 16 Wall. 36 (1873);

Shapiro v. Thompson, 394 U.S. 618 (1969);

Huntington v. Attrill, 146 U.S. 657, 36 L.

Ed. 1123, 1128 (1892).

Il.

The advertisement was not "purely com-

mercial" speech and is therefore outside

the rule of Valentine v. Chrestensen, 316

U.S. 52 (1942). The content of the adver-

tisement and the controversy surrounding

its subject matter, Roe v. Wade, 410 U.S.

113, 116 (1973), prohibits a “purely commer-

10

cial” characterization. Furthermore,

“speech is not rendered commercial by the

mere fact that it relates to an advertise-

ment." Pittsburgh Press v. ittsburgh Com-

mission on Human Relations, Supra at 384,

See N.A.A v. Button, 371 U.S. 415

(1963); New York Times v. Sullivan, 376 U.S.

254 (1964).

Itl.

Section 18.1-63 is overbroad for it

“sweeps within its prohibitions what may

not be punished vnder the First and Four-

teenth Amendments." Grayned v. City of

Rockford, 408 U.S. 104, 114 (1972). See

also Broadrick v. Oklahoma, 413 U.S. 601

(1973). The statute is overbroad because,

for example, it prohibits a speech urging

that women have the right to obtain an abor-

tion, prohibits a Virginia doctor from sug-

gesting that a patient obtain a legal abor-

tion in Virginia or elsewhere, and prohibits

appellant from publishing an editorial in

support of the right of abortion.

SECTION 18.1-63, ON ITS FACE OR AS APPLIED

IN THIS CASE, VIOLATES THE FREE PRESS GUARANTEE

OF THE FIRST AMENDMENT.

From the time of the Holmes-Brandeis dis-

sent in Milwaukee Publishing Co. v. Burleson,

255 U.S. 407 (1921), through Miami Herald Pub-

lishing Co. v. Tornillo, 42 U.S.L.W. 5098

(June 25, 1974), this Court has surrounded

newspapers with special protection under the

First Amendment, in recognition of the clemen-

tary fact that the nation's political insti-

tutions are free only insofar as its press

is free of governmental regulation or censor-

ship. The Court has consistently resisted

attempts by the federal and state governments

to invade or diminish the right of newspapers

freely to choose the material they will put

into print. Whether the attempts have taken

the form of prior restraints,3/ subsequent

punishments,4/ discriminatory taxes,5/

3/ Near v. Minnesota, 283 U.S. 697 (1931);

New York Times v. United States, 403 U.S,

713 (1971).

4/ Bridges v. California, 314 U.S. 252 (1941);

Pennekamp v. Florida, 328 U.S, 331 (1946);

Craig v. Harney, 331 U.S. 367 (1947); Mills

v. Alabama, 384 U.S, 214 (1966).

5/ Grosjean v. American Press Co., 297 U.S.

233 (1936).

12

or inhibiting forms of libel actions,6/ the

Court has uniformly recognized that the pur-

pose of the First Amendment is to insure and

encourage a free press as a fundamental instru-

ment of political liberty. Even so conserva-

tive a jurist as Mr. Justice Sutherland appre-

ciated the indispensability of a free press

in a free society. Speaking for the Court

in Grosjean v. American Press Co., supra at

250, he described the function of a free press

in the following terms:

. « « Since informed public opinion is the

most important of all restraints upon mis-

government, the suppression or abridgment

of the publicity afforded by a free press

cannot be regarded otherwise than with

grave concern. .. .A free press stands

as one of the great interpreters between

the government and the people. To allow

it to be fettered is to fetter ourselves.

The same appreciation permeates the Court's

opinion thirty years later in Mills v. Alabama,

384 U.S. 214 (1966). Mr. Justice Black's

opinicn for the Court said (at 279):

‘

Suppression of the right of the press to

praise or criticise governmental agents

and to clamor and contend for or against

6/ New York Times v. Sullivan, 376 U.S. 254

(1964); Butts v. Curtis Publishing Co., 388

Ye - 130 (1967); Rosenbloom v. Metromedia,

- Gertz v. Welch, Inc., 42 U.S.L.W. 5123

an 25, 1974).

13

change ... muzzles ... the very agen-

cies the Framers of our Constitution

thoughtfully and deliberately selected

to improve our society and keep it free.

No case since Burleson (apart, arguably,

from Pittsburgh Press v. Pittsburgh Commission

on Human Relations, 413 U.S. 376 (1973), see

note 7, infra) is to be found which upholds

the power of the federal or state governments

to forbid the exercise of free editorial

choice or which punishes the press for exer-

cising that choice.

That historical fact is a special feature

of our political system and its theme was re-

emphasized only a few months ago by a unani-

mous Court in Tornillo:

The choice of material to go into a news-

paper, and the decisions made as to limi-

tations on the size of the paper, and

content, and treatment of public issues

and public officials--whether fair or

unfair--constitutes the exercise of edito-

rial control and judgment. It has yet to

be demonstrated how governmental regulation

of this crucial process can be exercised

consistent with First Amendment guarantees

of a free press as they have evolved to

this time. 42 U.S.L.W, at 5103.

Even in Pittsburgh Press, a 5 to 4 de-

cision, the majority closely confined its

opinion by resting upon the purely commercial

14

character of the employment want ads involved

in the case, the fact that they did not express

@ position on “a matter of social policy,"

and the absence of editorial “judgmental dis-

cretion" in the content and placement of the

ads. And the opinion closed by stating that

- « « [Wje reaffirm unequivocally the pro-

tection afforded to editorial judgment

and to the free expression of views on

these and other issues however controver-

Sial. 413 U.S. at 391.7/

Appellant, then, would argue that, as a

necessary principle under the First Amendment,

he cannot be punished criminally for exercis-

ing his editorial choice to publish the adver-

tisement in issue. As Mr. Justice Douglas

said in Pittsburgh Press:

. . [t]he First Amendment presupposes

free-wheeling, independent people whose

vagaries include ideas spread across the

entire spectrum of thoughts and beliefs.

I would let any expression in that broad

spectrum flourish, unrestrained by Govern-

ment, unless it was an integral part of

action--. . . 413 U.S. at 399 (dissenting

opinion).

?/ The dissenters, of course, thought that

even these advertisements were protected by

the First Amendment. For a criticism of

Pittsburgh Press on First Amendment grounds,

sec Hepburn, Pittsburgh Press and the First

Amcadment, 2 Women's Rights Law Reporter

(1974).

15

A. The advertisement is not an integral

part of action.

Whether one applies the classic clear and

present danger doctrine to the facts of this

case, or the “imminent lawless action" test

articulated in Brandenburg v. Ohio, 395 U.S.

444 (1969), the result is the same, for the

Virginia statute must fall under both tests

and publication of the advertisement must be

held protected from criminal prosecution and

conviction.

It is perfectly clear that the contents

of the advertisement at issue were informa-

tional, far removed from action, no less

imminent action. Though also removed from

“mere abstract teaching" [Noto v. United States,

367 U.S. 290, 297 (1961)], since the ad was

more than a discussion supporting the idea

of abortion, or calling for efforts to per-

suade a legislature to legalize abortion, it

is nonetheless well within the zone of pro-

tected speech. The advertisement notified

Virginia citizens that abortion was legal

in New York State and provided an address

and phone number through which abortions

could be arranged and through which “infor-

mation and counseling" was available. As

such, it admittedly ran afoul of the statute's

own terms, for it must be fairly said that

the advertisement may well have “encourage ([d]

and prompt[ed] some Virginia citizens to

procure, or consider procuring, an abortion

for themselves, their wives or their friends.

But any statute which bans speech which may

have a tendency to “encourage or prompt"

16

outlawed conduct cannot stand in face of the

First Amendment, otherwise the spectrum of

permissible speech would be radically limited.

Speech would be stifled, not encouraged. See

New York Times v. Sullivan, supra.

The speech in this case, however, no matter

how it may have encouraged or prompted abor-

tion, or consideration of abortion, is well

within the parameter of speech protected under

the clear and present danger test or the

Brandenburg test, because there was, in Mr.

Justice Brandeis' words, “opportunity for

full discussion" [Whitney v. California, 274

U.S. 357, 377 (1927)], before any interested

women obtained an abortion. She could dis-

cuss the guestion with her family, friends,

and physician, and fully consider whether to

undergo an abortion, once having been in-

formed by the ad that one was available to

her in New York State.8/ Clearly, then, pub-

lication of the ad was not an integral part

of action, and surely not coercive. Cf.

Giboney v. Empire Storage & Ice Co., 336 U.S.

490, 498 (1949). Rather, it was a means by

which Virginia citizens could be informed

of the availability of abortion information

8/ This pragmatic measure of the degree to

which an outdoor advertisement presented the

necessary clear and present danger of the

commission of an abortion, was applied in

Mitchell Family Planning, Inc. v. City of

Royal Oak, 335 F. Supp. 738, 742-743 (E.D.

Mich. 1972), as an alternative basis for

striking down an ordinance prohibiting adver-

tising of abortions on billboards.

17

and services and clearly within the area of

protected speech as defined in Thornhill v.

Alabama, 310 U.S. 88, 102 (1940):

Freedom of discussion, if it would fulfill

its historic function in this nation, must

embrace all issues about which information

is needed or appropriate to enable the

members of society to cope with the exi-

gencies of their period.

The Virginia statute therefore must fall

because it undertakes to “contract the spec-

trum of available knowledge" [Griswold v.

Connecticut, 381 U.S. 479, 482 (1965)], and

to suppress the flow of information which

enables individuals to deal with “matters so

fundamentally affecting a person as the de-

cision whether to bear or beget a child"

[Eisenstadt v. Baird, 405 U.S. 438, 453

(1972)], a decision which this Court has now

held to be protected by the constitutional

right of privacy. Roe v. Wade, 410 U.S. 113

(1973).

B. The State's authority to regulate in

the medical health field cannot save

the statute or sustain the conviction.

It was the view of the Virginia Supreme

Court that Section 18.1-63 was “a reasonable

measure to ensure that pregnant women in

Virginia who decide to have abortions come

to their decisions without the commercial ad-

vertising pressure usually incidental to the

sale of a box of soap powder" (J.S. 7a).

Since that justification was put forward in

18

support of a statute that affects the First

Amendment and the right of privacy, ". ..

the State may prevail only upon showing a

subordinating interest which is compelling,"

Bates v. Little Rock, 361 U.S. 516, 524 (1960);

and that interest “cannot be pursued by means

that broadly stifle fundamental liberties

when the end can be more narrowly achieved."

Shelton v. Tucker, 364 U.S. 479, 488 (1960).

In light of those constitutional requirements,

the State's justification is totally inade-

quate.

We have argued above that the constitu-

tional interest in freedom of the press,

and the correlative right of readers to re-

ceive useful information relating to a con-

troversial social issue, requires that ap-

pellant's conviction be reversed. Those

interests are by themselves so compelling

that they are not overcome in this case by

Virginia's asserted interest in regulating

the medical health field. There are, how-

ever, three additional constitutional inte-

rests which must be added to the scale in

appellant's favor--the right of privacy,

the right to travel, and the limitations

upon the power of the states to penalize its

citizens for actions unlawful in the state

of residency but lawful when performed out-

side that state.

In February 1971, when appellant was

tried and convicted for publishing the

informational advertisement, abortion was

prohibited in Virginia except for the

19

narrowest exceptions.9/ This prohibition was

common, in varying degree, to the vast majo-

rity of states in the country. Abortion was,

however, legal in New York, as the result of

legislation. That legislative choice by New

York was both appropriate in terms of its

power to protect the health and well-being

of its people, and invulnerable to constitu-

tional challenge since the power to permit

abortion logically follows from and is encom-

passed within the power of a state, prior

to Roe v. Wade and Doe v. Bolton,to regulate

abortion to any degree.

In Roe v. Wade and Doe v. Bolton, the

Court held tnat the fundamental right to

privacy includes the decision to have an

9/ Code of Virginia §18.1-62 (1971 Cumn.

Supp.), provided:

--If any person administer to or cause to

be taken by a woman, any drug or other

thing, or use means, with intent to des-

troy her unborn child, or to produce

abortion or miscarriage, and thereby des-

troy such child, or produce such abortion

or miscarriage, he shall be confined in

the penitentiary not less than one nor

more than ten years.

Sec. 18.1-62.1, allowed abortion, after 120

days residency, if pregnancy was "likely to

result in the death of the woman, or substan-

tially impair [her] mental or physical

health"; if the child was likely to be born

“with an irremediable and incapacitating men-

tal or physical defect; or if pregnancy was

the result of incest or forcible rape."

20

abortion. That Virginia did not recognize

this right in 1971 means neither that it did

not at that time inhere in Virginia women,

northat such women could be penalized for

seeking to travel out of state to exercise

the right in states where abortion was legal.10/

The judicial groundwork for the constitu-

tional right to freedom and privacy in

matters intimately affecting marriage, pro-

pon and family relationships was well

esta shed by 1971, e.g., Griswold v. Con-

necticut, 381 U.S. 479 (1965); Loving v.

Virginia, 388 U.S, 1 (1967); and Skinner v

Oklahoma, 316 U.S, 535 (1942). Even in the

absence of such precedents, Virginia women

10/ The Court could dispose of this case very

directly and simply by declaring Roe and Doe

to have retroactive effect and thus nullify-

ing any conviction based upon a statute which

assumed the power of the states to regulate

abortion in totality. The Second Circuit

did precisely that in U.S, ex rel. Williams

v. Preiser, 497 F.2d 337 (1974), where it

vacated a 1966 conviction of a physician

under New York's anti-abortion statute.

Given Roe and Doe, the court said (at 339),

"Section 1050 is, ‘in legal contemplation,

as inoperative as though it had never been

passed.’ Norton v. Shelby County, 118

U.S. 425, 442 (1886). This decla-

ration of retroactive invalidity assures the

supremacy of the newly recognized substan-

tive right over a state's power to punish."

See also Davis v. United States, 42 U.S.L.W.

4857 (June ll, 1974).

21

had the right to travel freely between

states for a myriad of purposes, not the

least of which was to seek medical treatment

legally being dispensed in New York.

The fact that most abortions were illegal

in Virginia 11/ at the time of appellant's

conviction, thereby raising a superficial

similarity to the fact situation in Pitts-

burgh Press, is of no avail to the State

here because the advertisement solicited in-

terest in abortions performed in New York

State where they were legal. The case is

therefore distinctly different than Pitts-

burgh Press.

We advert to this state of facts in res-

ponse to the assertion by the majority in

pittsburgh Press that any First Amendment

interest of the newspaper there “is altoge-

ther absent when the commercial activity

itself is illegal and the restriction on ad-

vertising is incidental to a valid limitation

on economic activity.” 413 U.S, at 389 . But

that “valid limitation,” in turn, is itself

altogether absent when the activity advertised

is legal where it is to be consummated. 12/

11/That some abortions were then legal in Vir-

ginia is an aspect of the statute's over-

breadth with which we deal in Point III,

infra.

12/The ordinance involved in Pittsburgh Press,

in recognition of the constitutional inhibi-

tion against prohibiting the advertisement of

activity not illegal, specifically excluded

from coverage jobs exempt from its anti-dis-

22

In that case, Virginia has

no valid int

in prohibiting its citizens from being —

formed of the availab

sobiomeee ability of the legal

The salient fact is that the advertisement

proposes an activity which is

mated entirely outside Siauints*e tae

Apart from the First Amendment considerations

canvassed above, we can concede for argu- -"

if on ace the case might be different

sement proposed a transacti

lawful elsewhere but ill “90g

where its nature siboun® the lt 9 ray f

consummation in Virginia, for example the

sale of marijuana or fireworks (assumin :

their illegality in Virginia). tn jones

a though the sale outside of Virginia

pe ade lawful, the nature of the advertised

ity would allow it to be imported int

— used within Virginia in violation of :

a law. But an abortion is of an entire-

y different nature. t[t is completed u

being performed outside Virginia and haee

are no contacts between the surgical =

en and the State of Virginia except the

ortuitous fact that the woman resides

crimination provisions. 413 U.S. at 380

ae... Virginia legislature belatedly ack.

ged the same constitutional inhibition

by amending Sec. 18.1-63 in 1972 so that it

applies only to speech relating to “aborti

or miscarriage to be performed in this 7

State . " See not pra

® « el, supra, f

text of the amended statute, ——

23

there. Virginia can assert an interest in

banning the advertisement in issue here only

if it also intends to assert the power to

punish Virginia residents who undergo abor-

tions outside its jurisdiction, or who engage

in any other activity which is illegal in

Virginia though lawful where performed. But

it has no such power, for the States can

impose criminal sanctions only for conduct

within its jurisdiction. Huntington v.

Attrill, 146 U.S. 657, 36 L.Ed. 1123, 1128

(1892). To say that the state has that

power is to invest state government with a

degree of paternalistic power over its

citizens and over their right to travel about

the United States and freely conform to the

laws of the various states through which

they travel, which would violate the privi-

leges and immunities clause, see The

Slaughter-house Cases, 16 Wall. 36 (1873),

and the more modern constitutional right to

travel which is protected by the due process

clause of the Fourteenth Amendment, Shapiro

v. Thompson, 394 U.S. 618 (1969).

Last term the Court struck down a resi-

dency requirement for county-paid health

cases as violative of the right to travel.

it v. Maricopa

t t al., 42 U.S.L.W. 4277 (February

26, 1974). The issue there was a residency

requirement. A similar residency require-

ment for medical care--specifically for

abortions--was struck down by this Court in

v. Bolton, in terms that affect any state

statute which would confine the citizens of

24

one state to that state for medical treat-

ment or hinder their travel to other states

for such treatment:

Just as the Privileges and Immunities

Clause Constitution Article IV §2 pro-

tects persons who enter other states to

ply their trades, [citations omitted], so

must it protect persons who enter Georgia

seeking the medical services that are

available there. See Toomer v. Witsell,

334 U.S. 385, 396-397 (1948). A con-

trary holding would mean that a State

could limit to its own residents the gene-

ral medical care available within its

borders. This we could not approve.

Certainly, if the receiving state cannot pro-

hibit migration travel to its cities for

medical care, surely the state from which

some migrants come may not restrict them

either,

These considerations of the limits upon

state power, combined with dominant First

Amendment aspects of this case, and the

special constitutional protections extended

to decisions whether or not to bear children,

all combine to overwhelm the slim interest,

if indeed it is a valid interest at all,

asserted by the Virginia Supreme Court. That

interest cannot survive the competing con-

stitutional considerations which we have

described. 13/

13/ In Hiett v. United States, 415 F.2d 664

(1969), the Fifth Circuit struck down a

25

It.

THE ADVERTISEMENT IN THIS CASE WAS NOT

“PURELY COMMERCIAL" SPEECH.

It will be argued, of course, as the

Supreme Court of Virginia held, relying prin-

cipally upon Valentine v. Chrestensen, 316

U.S. 52 (1942), that none of the foregoing

analysis bears on this case because the ad-

vertisement in issue was commercial speech

and therefore stripped of all constitutional

protection, including the First Amendment.

By invoking the magical phrase, "commer-

cial advertising," the Supreme Court of .

Virginia has allowed the imposition of cri-

minal punishment upon a newspaper editor for

publishing information of political and

social importance, merely because it was

imparted in the form of an advertisement and

described services available for a fee.

But the advertisement, by virtue of its

content and the controversy surrounding its

subject matter, cannot therefore be conclu-

federal statute (18 U.S.C. §1714)prohibiting

use of the mails for advertisements giving

information on the availability of foreign

divorces on the ground, inter alia, that

“information on matters of social importance,

especially those relating to the marriage

relation and the exercise of rights arising

from the relation, is also given extensive

Constitutional protection. Griswold v.

Connecticut” (at 672).

26

sively characterized as "purely commercial"

and thus stripped of First Amendment pro-

tection.14/

This Court has consistently rejected state !

attempts to exclude categories of speech

from the safeguards of the First Amendment

by attaching labels to the kinds of expres-

sion involved. See N.A,A,C.P. v. Button,

371 U.S. 415 (1963); New York Times Co. v.

Sullivan, 376 U.S, 254 (1964); Pittsburgh

ission on n Relations, supra. Rather,

the Court has examined the content of the

Speech and protected the expression of opin-

ion or the communication of information,

regardless of whether labels such as “soli-

citation" (Button) or "libel" (Sullivan) are

sought to be applied to the speech. In this

case, if the identical information--descri-

bing the legality of abortion in New York

and identifying agencies from which further

information could be obtained--had been

contained in the text of a news article or

editorial, the First Amendment would surely

have protected appellant against conviction

under the statute at issue. See Pittsburgh

Press, 413 U.S, at 391. Only a strained

14/ It is important to emphasise the precise

holding in Valentine:

- « « [T]he Constitution imposes no such

restraint on government as respects

purely commercial advertising. 316 U.S.

at 54 (emphasis added).

27

application of the commercial speech doc-

trine yields a different result here.

First, it is clear that ". . . speech is

not rendered commercial by the mere fact

that it relates to an advertisement,"

Pittsburgh Press, 413 U.S. at 384, nor by

the fact that the newspaper is paid for pub-

lishing the advertisement. Ibid.; New York

Times v. Sullivan, supra, at 266.

Similarly, First Amendment protection cannot

be withheld because the communication in-

volves the solicitation of funds or because

of the profit-making nature of the advertiser;

the existence of “commercial activity, in

itself, is no justification for narrowing

the protection of expression secured by the

First Amendment." Ginzburg v. United States

383 U.S. 463, 474 (1966); New York Times

Co. v. Sullivan, supra; Smith v. California,

361 U.S. 147 (1959); Jamison v. Texas, 318

U.S. 413 (1943).

Instead, this Court has indicated that

the content of the advertisement must be

examined to decide whether, on the one hand,

it contains “purely commercial advertising"

which does “no more than propose a commer-

cial transaction . . ." Pittsburgh Press,

413 U.S. at 385, Valentine v. Chrestensen,

316 U.S. 52, 54 (1942), or, on the other

hand, it ". . . communicate[s] information,

express[es] opinion, recite[s] grievances,

protest[s]) -laimed abuses . . ."“ or seeks

financial support for an important social

movement. New rk Times Co. v. Sullivan,

28

Supra at 266. But the Court has not iden-

tified the criteria by which to determine

where a particular advertisement will be

placed on the spectrum. In Valentine, where

the commercial speech exception originated,

the advertisement was a flyer announcing the

sale of admission to a submarine on exhibit.

In Pittsburgh Press, the classified adver-

tisements were characterized as “no more

than a proposal of possible employment" and

thus "classic examples of commercial speech."

413 U.S. at 385.

Here, by contrast, the advertisement con-

tained much more than a proposal for a com-

mercial transaction and consequently cannot

be characterised as “purely commercial."

First, it explicitly provided the infor-

mation that the law in New York had been

changed, that abortions there were legal,

and that no residency requirements were im-

posed. At the time the advertisement ap-

peared, such information was vital to per-

sons in Virginia attempting to deal with

matters as fundamental ". . . as the decision

whether to bear ... a child." Eiscnstadt

v. Baird, supra at 453. Surely, such in-

formation ranks higher on the scale of First

Amendment interests than does information

about a submarine tour. See, Associated

Students for the University of California

at Riverside v. Attorney General, 368 F.

Supp. 11 (D.C.Cal. 1973) (three-judge court)

and Atlanta Cooperative News P ect v.

United States Postal Service, 350 F. Supp.

A a ne a

29

234 (N.D.Ga. 1972) (three-judge court) (hold-

ing unconstitutional the federal statutes,

18 U.S.C. §1461 and 39 U.S.C. §3001, pro-

hibiting the mailing of abortion informa-

tion).

Similarly, the information that New York

had legalized abortions was important not

just to persons dealing with pregnancy, but

to citizens in Virginia generally. The

knowledge that other states had altered their

laws on such a controversial subject as abor-

tion is likely to have a tangible impact on

the attitudes of persons concerning restric-

tive laws in their own state. Such reali-

zation, in turn, may prompt an individual to

take steps to change the law. And thus, the

statement that "Abortions are now legal in

New York" has a direct potential for fueling

the process of self-government which is at

the heart of First Amendment camcern. See,

e.g., Red Lion Broadcasting Co., Inc. v.

F.C,C,, 395 U.S. 367 (1969).

Finally, in the circumstances here, the

very running of the advertisement is an im-

plicit editorial endorsement of the legality

of abortions and the availability of abor-

tion information and services. The news-

paper in which the advertisement appeared was

not a regular, establishment paper, but an

“underground” paper, run by a “collective”

whose staff members were expressly and open-

ly concerned with the entire abortion issue(J.s.

4a). In 1971 when thisadvertisement appeared

in appellant's newspaper, abortion was an

issue of great political, social, and

30

moral debate, and it remains so today.

Abortion laws have been the subject of in-

tense controversy in the public forum, the

legislatures, political campaigns and in the

courts. Indeed, its controversial nature

was explicitly recognized in the preface to

this Court's decision in Roe v. Wade, 410

U.S. at 116:

We forthwith acknowledge our awareness

of the sensitive and emotional nature

of the abortion controversy, of the vi-

gorous opposing views, even among phy-

sicians, and of the deep and seemingly

absolute convictions that the subject

inspires. One's philosophy, one's ex-

periences, one's exposure to the raw

edges of human existence, one's reli-

gious training, one's attitudes toward

life and family and their values, and

the moral standards one establishes and

seeks to observe, are all likely to in-

fluence and to color one's thinking and

or

31

To paraphrase the Court in Pittsburgh

Press, the advertisement here resembles the

one in New York Times Co. v. Sullivan more

closely than the handbill in Valentine v.

Chrestensen, and, therefore, cannot be cate-

gorized as “purely commercial advertising,”

beyond the pale of the First Amendment.16/

Inflexible application of the commercial

speech doctrine is particularly dangerous

where the medium regulated is a newspaper.

With the exception of this Court's sharply

16/ Judge Wright, though describing as “per-

suasive”" the arguments that product adver-

tising “is generally unrelated to the values

which the First Amendment was designed to

preserve," Capital Broadcasting Co. v.

Mitchell, 333 F. Supp. 582, 592 (D.D.C.1971),

has said:

But it does not follow from their general

validity that the words “product advertis-

ing" are a magical incantation which, when

piously uttered, will automatically decide

cases without the benefit of further

thought. Thus when commercial speech has

involved matters of public controversy

[citing New York Times v. Sullivan, supra,

and Thornhill] v. Alabama, supra] or artis-

tic expression [citing Smith v. California,

361 U.S. 147 (1959)], or deeply held per-

sonal beliefs, [citing United States v.

Ballard, 322 U.S. 78 (1944)], the courts

have not hesitated to accord it full First

Amendment protection.

conclusions about abortion.

Given the content and the context of this

advertisement, it must be read as an impli-

cit expression of editorial opinion on the

subject matter involved.15/

15/ By the same token, under these circum-

stances the decision to run this particular

advertisement implicated the newspaper's

editorial judgment and processes in a way

that the decision on placement of employment

advertisements in Pittsburgh Press did not.

ed

32

divided decision in Pittsburgh Press, the

Court has traditionally and consistently

singled out newspapers for special First

Amendment protection. See Point I.A., supra.

Thus, the reliance below on decisions employ-

ing the "commercial" speech doctrine in the

area of television and radio broadcasting is

irrelevant. Decisions such as New York

State Broadcasters Association v. United

States, 414 F.2d 990 (2d Cir. 1969), cert.

denied, 396 U.S. 1061 (1970); Banzhaff v.

F.C.C., 405 F.2d 1082 (D.C.Cir. 1968); cert.

denied, sub nom. Tobacco Institute Inc. v.

F.C.C., 396 U.S. 842 (1969); and Capital

Broadcasting Co. v. Mitchell, 333 F. Supp.

582 (D.D.C. 1971) (three-judge court), aff'd

sub nom., Capital Broadcasting Co., et al.

v. Acting Attorney General, et al., 405 U.S.

1000 (1972), were premised either on the

federal government's broader power to regu-

late the electronic media or on a specific,

historic congressional policy over the sub-

stantive problem, for example, the use of

government regulated instrumentalities to

conduct lotteries. These decisions merely

reflect the distinctions between free print

media and regulated electronic media; they

cannot be invoked as the basis for suppress-

ing the former.

To allow the commercial advertising doc-

trine to serve as the basis for sustaining

the appellant's conviction is to sanction a

"disturbing enlargement” of that doctrine

"and a serious encroachment on the freedom

of the press guaranteed by the First Amend-

ment." Pittsburgh Press, 413 U.S. at 393

oe re

en

33

(Burger, Ch. J., dissenting). If the doc-

trine allows criminal punishment of a news-

paper editor for publishing an advertise-

ment supplying information about a lawful

medical service which was the subject of

great social controversy, then the question

of the continued vitality of the commercial

advertising exception from First Amendment

protection would surely have to be con-

fronted.17/

17/ A variety of courts and commentators have

urged that the rigid commercial speech doc-

trine be relaxed to allow some First Amend-

ment protection for advertising. For example,

in United States v. Pellegrino, 467 F.2d 41,

45 (1972), the Ninth Circuit observed:

We cannot agree with the Government

that advertising is devoid of literary,

artistic or other social value and ac-

cordingly is less deserving of First

Amendment protection than the substance

of that which is advertised. Advertis-

ing performs an important First Amend-

ment function in aid of communication.

On this Court, Mr. Justice Douglas, though

he joined the unanimous opinion in Valentine

v. Chrestensen, announced eighteen years

ago that that ruling "has not survived re-

flection." Cammarano v. United States, 358

U.S. 498, 513 (1958). The First Amendment,

he said (at 514):

34

- - - is not in terms or by implication

confined to discourse of a particular

kind and nature ... The profit motive

should make no difference, for that is

an element inherent in the very concep-

tion of a free press under our system

of free enterprise . .. Chief Justice

Hughes speaking for the Court in Lovell

v. Griffin, 303 U.S. 444, 452 defined

the First Amendment right with which we

now deal in the broadest terms, 'The

Press in its historic connotation com-

prehends every sort of publication which

affords a vehicle of information and

opinion.

Mr. Justice Douglas reaffirmed that view in

Dun _ and Bradstreet, Inc. v. Grove, 404 U.S.

898, 904-905 (1971) (dissent), and Pittsburgh

Press, 413 U.S. at 397-398. See also the

opinions of Mr. Justice Stewart in Pitts-

burgh Press, 413 U.S. at 401, and of Mr.Jus-

tice Brennan in Lehman v. Shaker Heights

42 U.S.L.W. 5116, 5121, n. 6 (June 25, 1974)

(dissenting opinion); and see Note, Freedom

of Expression in a Commercial Context, 78

Harv.L.Rev. 1191 (1965); Redish, The First

Amendment in the Market Place: Commercial

Speech and Values of Free Expression, 39

Geo.Wash.L.Rev. 429 (1971).

Oe OT etl tite ats OY A the

A te ae me, te ee a

ee le me

- 1 te ae ee

35

IIl.

SECTION 18.1-63 IS OVERBROAD IN VIOLATION

OF THE FIRST AMENDMENT.

The overbreadth of this statute, simul-

taneously prohibiting expression which argu-

ably can be proscribed and that which may

not, is apparent. By its terms, it prohi-

bits a speech urging that women have a

right to obtain an abortion; it prevents a

husband from discussing the possibility of

an abortion with his pregnant wife; it pre-

vents a Virginia doctor from suggesting that

a patient obtain a legal abortion in Vir-

ginia or elsewhere; it suppresses abortion

information supplied by a non-profit, non-

commercial agency; in fact, it prohibits

appellant from writing and publishing an

editorial which could be said to encourage

abortion. It simply “sweeps within its pro-

hibitions what may not be punished under

the First and Fourteenth Amendments."

Grayned v. City of Rockford, 408 U.S. 104,

114 (1972). See, Hiett v. United States,

supra; Mitchell Family Planning, Inc. v.

City of Royal Oak, supra at 741-742. Thus

it suffers from the fatal constitutional

defect of overbreadth.

This Court has required that provisions

impinging upon areas protected by the First

Amendment must be drawn with sufficient

narrowness and precision to insure that

First Amendment freedoms retain the "“breath-

ing space" necessary for robust survival.

E.g. Note, The First Amendment Overbreadth

36

Doctrine, 83 Harv. L. Rev. 844 (1970);

Note, The Void-for-Vagueness Doctrine in the

Supreme Court, 109 U. of Pa. Law Rev. 67

(1960); Broadrick v. Oklahoma, 413 U.S. 601

(1973). As was true of the statute in Spence

v. Washington, 42 U.S.L.W. 5148, 515l, n. 9

(June 25, 1974), Sec. 18.1-63 is of “lLimit-

less sweep" and must therefore fall. See

also Gooding v. Wilson, 405 U.S. 518 (1972);

Cohen v. California, 403 U.S. 15 (1971);

Keyshian v. Board of Regents, 385 U.S. 589

(1967); Cox v. Louisiana, 379 U.S. 536 (1965);

Plummer v. Columbus, 42 U.S.L.W. 2222 (Oct.

16, 1973).

In Broadrick, Mr. Justice White articu-

lated the rationale underlying the First

Amendment overbreadth doctrine when he

stated:

"It has long been recognized that the

First Amendment needs breathing space

and that statutes attempting to restrict

or burden the exercise of First Amend-

mend rights must be narrowly drawn and

represent a considered legislative judg-

ment that a particular mode of expres-

sion has to give way to other compelling

needs of society.

an

Ane

LAP OO ea:

——

37

Thus, Section 18.1-63 cannot survive

constitutional scrutiny if its proscrip-

tions are so broadly drawn as to justify a

“judicial prediction or assumption" that it

will induce third persons to refrain from

protected activity as a consequence. The

statute plainly has that exact effect and

is therefore unconstitutional.

As Mr. Justice White noted in Broadrick,

a second policy underlying the First Amend-

ment doctrine is a concern that no penal

statute, especially in the First Amendment

area, may vest a local functionary with

“standardless" discretion to determine

whether or not a given form of expression

falls within its proscription. It is, of

course, a truism to observe that any such

overbroad statute is a licensing provision,

permitting only that expression tolerated

by local officials to flourish.

38

In Cox v. Louisiana, 379 U.S. 536 (1965),

this Court, in declaring a broadly worded

breach of the peace statute unconstitutional,

stated:

[t]he lodging of such broad discretion

in a public official allows him to de-

termine which expressions of view will

be permitted and which will not. This

thus sanctions a device for the sup-

pression of the communication of ideas

and permits the official to act as a

censor. 379 U.S. at 557.

In Thornhill v. Alabama, 310 U.S. 88 (1940)

a broad anti-picketing ordinance was invali-

dated because:

The existence of such a statute, which

readily lends itself to harsh and dis-

criminatory enforcement by local prose-

cuting officials, against particular

groups deemed to merit their displea-

sure, results in a continuous and per-

vasive restraint on all freedom of

discussion that might reasonably be

regarded as within its purview. 310

U.S. at 97-98.

That second defect is apparent on the face

of Sec. 18.1-63 and from the record in this

case. As we have already mentioned above,

the statute's very terms allow standardless

application. Furthermore, the record shows

that appellant, whose publication is an

unorthodox underground newspaper, was pro-

secuted, but that Redbook Magazine, an

—s =

39

established orthodox publication, was not,

even though it carried “abortion information

from across the United States" (App.p.3).

Though it will no doubt be said that the

difference is that Redbook's information was

editorial whereas appellant's was an adver-

tisement, it can, of course, as well be said

that the difference is that Virginia chose

to prosecute appellant because they disliked

his publication, and chose not to prosecute

Redbook--though the terms of the statute

allow it--because of its size, prominence

and reputation. For that additional reason,

Sec. 18.1-63 must be declared unconstitutional.

A. Appellant has standing to argue the

overbreadth of the statute.

The court below, explicitly refusing to

give the statute a limiting construction,

compare New York State Broadcasting Associa-

tion v. United States, supra, 414 F.2d at

997, held that because appellant's activity

was “commercial,” he lacked standing to

challenge the statute's overbreadth.18/

In reaching this conclusion, the Supreme

Court of Virginia relied exclusively and

improperly on Breard v. Alexandria, 341 U.S.

622 (1951). Breard involved an ordinance

18/ The court did state in dictum that it

would not interpret the statute to encompass

some of the suggested hypothetical appli-

cations, but the holding rested on the con-

clusion that the appellant lacked standing

to raise these arguments (J.S. 9a-10a). In

any case, the ostensible narrowing of the

statute is insufficient. See Gooding v.

Wilson, supra.

40

prohibiting uninvited soliciting by door-

to-door salesmen of magazine subscriptions.

In response to a First Amendment challenge,

this Court observed: "Only the press or

oral advocates of ideas could urge this

point. It was not open to the solicitors

for gadgets or brushes." Id. at 641. Even

under this reasoning, the appellant, as a

member of the press, was entitled to mount

an overbreadth challenge to this statute.

More importantly, the decision below

simply ignored this Court's contemporary

overbreadth doctrine that one whose own con-

duct is not protected may nevertheless

raise a challenge to an overly broad sta-

tute: “Because overbroad laws, like vague

ones, deter privileged activity, our cases

firmly establish appellant's standing to

raise an overbreadth challenge." Grayned

v. City of Rockford, 408 U.S. 104, 114

(1972). As the Court explained last Term,

in the First Amendment area the normal

standing rules are relaxed in order to

enforce the requirement that statutes which

regulate expression are narrowly and pre-

cisely drawn:

Litigants, therefore, are permitted to

challenge a statute not because their

own rights of free expression are

violated, but because of a judicial

prediction or assumption that the sta-

tute's very existence may cause others

not before the court to refrain from

constitutionally protected speech or

expression. Broadrick v. Oklahoma,

413 U.S. at 612.

41

And allowing an overbreadth challenge is

particularly appropriate where, as here,

the statute directly regulates expression.

Finally, the employment of an over-

breadth analysis is not undermined by the

recent change in the statute. The amendment

in no way narrowed the reach of the statute,

but simply added a prohibition on "the use

of a referral agency for profit" to "en-

courage or promote the processing of an

abortion..." See note l, supra.

Virginia still provides that, "If any person,

by publication, lecture, advertisement, or

by sale or circulation of any publication,

- « « or in any other manner, encourage or

promote the processing of an abortion or

miscarriage to be performed in this State

which is prohibited under this article,

he shall be guilty of a misdemeanor." And

thus since Virginia still claims the authori-

ty to punish protected expression, “manifestly,

strona medicine” must be administered.

Broadrick v. Oklahoma, supra, at 613.

42

CONCLUSION

For the reasons stated above, appellant's

conviction must be reversed and Section

18.1-63 declared unconstitutional.

Respectfully Submitted,

MELVIN L. WULF

JOEL M. GORA

JUDITH MEARS

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

JOHN C. LOWE

F,. GUTHRIE GORDON, III

American Civil Liberties

Union of Virginia

1111 West Main Street

Charlottesville, Virginia

Attorneys for Appellant

September 1974