There are variety of abortion cases over the years involving free speech issues such as Rust v. Sullivan, which upheld 5-4 a limit on abortion speech in federal funded clinics. A recent bad ruling struck down, by the same vote, a regulation of so-called "crisis pregnancy clinics" even though comparable "informed consent" [quotes are not meant to be scare quotes] laws generally were upheld, especially after Planned Parenthood v. Casey. The Supreme Court has not addressed that matter directly as a First Amendment free speech matter much over the years.*
Bigelow v. Virginia (1975) protected abortion advertising, but its reach is unclear. First, the law was defunct and even when it wasn't, this seemed to be the first time the old law was actually used. It also addressed an ad that had notable informative content (abortions now legal in NY and no residency requirements) of something the Supreme Court deemed a constitutional right. And, a major concern of the opinion was to make clear that commercial speech has at least some protection, even if an old opinion dismissively said otherwise. The opinion left open a range of things that might be regulated here, including medical advertising and referral groups themselves.
The dissent (the abortion duo) probably was right to say the majority too broadly belittled the importance of regulating medical reference agencies, even if Virginia was dealing with something out of state. Their citizens were still reading about it. Their health could be at risk. And, in this sense, since the direct target is not even in the state, it might be when you target the media source. But, taking everything into consideration, including the selective nature of the enforcement, the majority still probably was correct. Arguably close though, at least in 1975.
The case, however, was really the beginning -- though past cases flagged the time was coming -- of a new security for commercial speech. Soon, with merely Rehnquist dissenting (putting the specter, imagine, of drug advertising -- overacting and music not included), prescription drug prices was seen as within the ambit of the First Amendment. And, then we had legal advertising. Beer labeling. Tobacco advertising even was partially protected eventually in regard to displays at convenience stores. The breadth of what some suggest is a "Lochnering" of the 1A is still growing. Thus, trademarks was seen as obviously a matter of concern here, even though for years, not so much.
The regulation of advertising suggests that there are lines drawn and they are not the same as non-commercial speech, which isn't absolute either. And, the case also suggests that there should be some concern about limitations. Why should a paid notice talking about a paid service (though the paper did not at first realize it was for profit) of particular constitutional notice be barred from a publication? And, again, note how selectively it was enforced, at the time before Roe v. Wade protected abortion services broadly in Virginia itself. All/nothing cannot be the line.
This arose in 1983 in Bolger v. Youngs Drugs, the case referenced in the contraceptives discussion. This time a unanimous Court, Justice Rehnquist concurring in part to emphasis it was content based, blocked a federal law "prohibit[ing] the mailing of unsolicited advertisements for contraceptives." It was granted that this was commercial speech, if material clearly with informative content. There was asserted an interest of privacy and concern for the needs of minors. But, this was selectively enforced and especially with the materials in envelopes that could simply be tossed in the trash, not much of a problem. The respondents granted that it was constitutional to allow recipients to opt out on their own per an earlier decision.
That decision is interesting in part because not only does it honor the privacy of the home, but has implications for "no call" registries. This also suggests the ongoing implications of such cases. Telemedicine is also another avenue one can explore.
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* As I noted, contraceptives over the years raised free speech issues, and some early battles going back to the late 19th Century involved the right to talk and distribute materials about birth control. A case that protected contraceptives targeted minors in between these two cases also directly addressed First Amendment issues. Meanwhile, the Roberts Court struck down a non-prostitution pledge to obtain federal aid.
Informed consent rules, that including what physicians must say to some degree, were upheld early after Roe v. Wade, but later cases struck down what was seen as inappropriate ideological laden "parade of horribles" type material. Planned Parenthood v. Casey pared back that to some degree but still said it must be "truthful." The distance between the two regimes has not quite been pressed.
Bigelow v. Virginia (1975) protected abortion advertising, but its reach is unclear. First, the law was defunct and even when it wasn't, this seemed to be the first time the old law was actually used. It also addressed an ad that had notable informative content (abortions now legal in NY and no residency requirements) of something the Supreme Court deemed a constitutional right. And, a major concern of the opinion was to make clear that commercial speech has at least some protection, even if an old opinion dismissively said otherwise. The opinion left open a range of things that might be regulated here, including medical advertising and referral groups themselves.
The dissent (the abortion duo) probably was right to say the majority too broadly belittled the importance of regulating medical reference agencies, even if Virginia was dealing with something out of state. Their citizens were still reading about it. Their health could be at risk. And, in this sense, since the direct target is not even in the state, it might be when you target the media source. But, taking everything into consideration, including the selective nature of the enforcement, the majority still probably was correct. Arguably close though, at least in 1975.
The case, however, was really the beginning -- though past cases flagged the time was coming -- of a new security for commercial speech. Soon, with merely Rehnquist dissenting (putting the specter, imagine, of drug advertising -- overacting and music not included), prescription drug prices was seen as within the ambit of the First Amendment. And, then we had legal advertising. Beer labeling. Tobacco advertising even was partially protected eventually in regard to displays at convenience stores. The breadth of what some suggest is a "Lochnering" of the 1A is still growing. Thus, trademarks was seen as obviously a matter of concern here, even though for years, not so much.
The regulation of advertising suggests that there are lines drawn and they are not the same as non-commercial speech, which isn't absolute either. And, the case also suggests that there should be some concern about limitations. Why should a paid notice talking about a paid service (though the paper did not at first realize it was for profit) of particular constitutional notice be barred from a publication? And, again, note how selectively it was enforced, at the time before Roe v. Wade protected abortion services broadly in Virginia itself. All/nothing cannot be the line.
This arose in 1983 in Bolger v. Youngs Drugs, the case referenced in the contraceptives discussion. This time a unanimous Court, Justice Rehnquist concurring in part to emphasis it was content based, blocked a federal law "prohibit[ing] the mailing of unsolicited advertisements for contraceptives." It was granted that this was commercial speech, if material clearly with informative content. There was asserted an interest of privacy and concern for the needs of minors. But, this was selectively enforced and especially with the materials in envelopes that could simply be tossed in the trash, not much of a problem. The respondents granted that it was constitutional to allow recipients to opt out on their own per an earlier decision.
That decision is interesting in part because not only does it honor the privacy of the home, but has implications for "no call" registries. This also suggests the ongoing implications of such cases. Telemedicine is also another avenue one can explore.
---
* As I noted, contraceptives over the years raised free speech issues, and some early battles going back to the late 19th Century involved the right to talk and distribute materials about birth control. A case that protected contraceptives targeted minors in between these two cases also directly addressed First Amendment issues. Meanwhile, the Roberts Court struck down a non-prostitution pledge to obtain federal aid.
Informed consent rules, that including what physicians must say to some degree, were upheld early after Roe v. Wade, but later cases struck down what was seen as inappropriate ideological laden "parade of horribles" type material. Planned Parenthood v. Casey pared back that to some degree but still said it must be "truthful." The distance between the two regimes has not quite been pressed.
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