Warren E. Burger: We'll hear arguments next in Bigelow against Virginia. Mr. Wulf, you may proceed.
Melvin L. Wulf: Mr. Chief Justice and may it please the Court. This case is here on appeal from the Virginia Supreme Court following a remand from this Court after the decisions here in Doe v. Bolton and Roe v. Wade. The question, the principal issue that the Court has to decide in broad terms is whether the First Amendment which extends a special and explicit protection to the press allows a newspaper editor to be held criminally responsible for publishing in his newspaper an advertisement for lawful abortion services. The facts are straightforward and were submitted by agreement on stipulation. The appellant, Mr. Bigelow is -- was the director and managing editor and responsible officer of a newspaper called the Virginia Weekly.
Warren E. Burger: Would it make any difference Mr. Wulf to your decision you have asserted in your briefs if that were explicitly an ad which solicited, actively solicited -- you say this is just an announcement of service, but suppose they solicited and fixed prices and set credit terms can be arranged in an extensive treatment that usually associated with solicitation of business?
Melvin L. Wulf: No, sir. I don't think it make any difference at all for the purpose of this case.
Warren E. Burger: It wouldn't make any difference at all, then it follows the state has no power to regulate the advertising of professional services?
Melvin L. Wulf: Well, these were not directly professional services that were being regulated in any case, these were referral services. This was not an advertisement by the physician that was performing the abortion. This was an advertisement by an independent institution organization which referred patients who came to them for the medical services.
Warren E. Burger: As a matter -- that's conduit to the professional services, isn't it, a direct --
Melvin L. Wulf: It surely is. No, I don't say at all that the state cannot regulate profession conduct. I say -- that was your question. I say that this was not that, one; two that it can't do it in this case because they can't act against the press in this situation; and three, they can't do it in this case because the service was that was to be performed as outside the territorial power of the state, because the advertisement was for and the service to be performed in New York where Virginia has no power over medical services, and it was lawful in New York. As I say, the facts consisted in this case of the advertisement, which on page 4 of our brief, which announces that abortions are legal in New York, that there are no residency requirements there, that the agency will provide placement service “at low cost”, and provides New York address and two New York phone numbers where the services can -- where the information about the services can be provided. Defendant, the appellant went to trial on those facts and was convicted under Section 18.21-63 of the Code of Virginia which is also on pages 4 and 5 of our brief, which states that “If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, encourage or prompt the procuring of abortion or miscarriage, he shall be guilty of misdemeanor” was convicted fined $500.00, $350.00 and that was suspended on a condition that he'd not violate the statute again. The Virginia Supreme Court in its decision held that the ad satisfied the terms of the statute, because it amounted to the encouraging or prompting of the procurement of an abortion and that it was not merely informational, then went on to say that in petition it was a commercial advertisement offering services for fee relying on Valentine v. Chrestensen and the Fourth Circuit's decision on Hunter versus United States very generally. And went further and in particular siad that where the regulation of medical health practices are concerned, the public should be free of commercial practices and pressures. And also finally held that appellant had no standing through his -- the overbreadth argument because appellant's conduct was in the commercial zone. I shall address myself to the first two issues my co-counsel Mr. Lowe will address the overbreadth argument on his portion of this argument.
Warren E. Burger: I suppose it follows from your position Mr. Wulf that a state would be constitutionally prohibited from telling newspapers that they could not advertise cigarettes?
Melvin L. Wulf: Yes, yes. I don't think that cigarette advertisers are immune from prohibitions on advertising; I think newspapers are immune from such regulation.
Harry A. Blackmun: What about the Virginia newspaper carrying an ad for a Maryland Lottery assuming the lottery is illegal in Virginia but legal in Maryland?
Melvin L. Wulf: I think, I think that's lawful too because I don't think that that would be any different than the facts in the case here, yes, Your Honor.
William H. Rehnquist: What do you do with the Pittsburgh Press --
Melvin L. Wulf: I disagree with it Your Honor.
William H. Rehnquist: Well, you got five people that are still here though that joined it. You got to get at least one of them.
Melvin L. Wulf: Well, what I do with Pittsburgh Press is to try to persuade at least one of the members of that majority but this is not commercial speech that's involved in my case, and I will deal with that because I think it's pretty clearly not. Before getting to the commercial speech, question though, this statute -- the first argument is that the statute has to be struck down on its face and as construed in this case by the Virginia Supreme Court, because it, it does not bend any of those categories of speech which this Court has held are prohibitable nor does it require the -- nor in this case was there any clear and present danger that any evil which the state might prohibit would in fact be met. We also argue that as far as the Virginia Supreme Court's medical health interests, asserted interests goes that insofar as that invites the application of balancing test here, that in the balance, the appellant must prevail, and we also argue that the statute is overbroad. But arching over all of those arguments which I make is the fact that the appellant here was a newspaper editor convicted solely because of a -- words printed in his publication, his newspaper. And the specific protection extended to the press by the First Amendment and the construction application of the free press provision by this Court at least since Grosjean and on through Mills, New York Times v. Sullivan, Pentagon Papers case, Tornillo, requires that the conviction in this case be reversed and that the appellant not be allowed to be convicted of a crime merely for printing material in his newspaper. And indeed even Pittsburgh Press assured us that the First Amendment protections of the free press would not go so far as to allow the appellant here to be convicted, because Pittsburgh Press, the majority opinion, distinguished between the material involved there and the advertisements -- and advertisements which expressed position on matters of social policy and also distinguished between the situation regarding the classified ads and the Pittsburgh Press case and the exercise -- distinguishing it from the exercise of editorial judgmental discretion in the content of advertisements. And the Pittsburgh Press majority indeed promised, and I quote “that we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of use on these and other issues however controversial.” This speech cannot be banned because it does not fall into any of the standard categories which this Court has allowed to be prohibited namely obscene. It's not obscene, it's not libelous nor does the advertisement constitute fighting words. Nor does it present assuming that the state may prohibit this prohibit abortions. This statute does not require that advertisements for abortions satisfy the clear and present danger test. In effect, it's clear that the mere advertisement allows ample time and in Mr. Justice Brandeis' words for a full discussion of the question whether the woman citizen of Virginia will in fact undergo the abortion. But that rests -- but that argue -- even that argument rests on the duties assumption that the State of Virginia has any power at all to prohibit Virginia residents from being informed of the availability of lawful abortions outside the state. There is a District Court -- three-judge District Court case in Georgia, the Atlanta Cooperative News case cited on our brief which the facts struck down what is the federal equivalent of the Virginia statute in 1972 are precisely on the grounds which I advance here in our argument. And another District Court case in Michigan that supports the application of the clear and present danger test to abortion advertisements, in that case it was a ban on billboard advertisements of lawful abortions, abortions lawful in New York. As far as the regulations of the medical health field interest of the state is concerned it has no merit. The Virginia Supreme Court put forward the reason describing its interest in terms of assuring the pregnant citizens of Virginia received proper medical care. But that, in this case, although generally of course, a fair interest of the state where medical care is concerned, doesn't apply here. First, the First Amendment is involved in this case on behalf of the appellant who was an editor of a newspaper, and for the reasons I have already briefly canvassed that is one of the other ingredients that has to go onto the balance here. There is the correlative First Amendment right of readers of the newspapers to receive the information about the availability of lawful abortions in New York honest and on a subject which concerns the right that held by this Court to be fundamental to choose whether the right that women have to choose whether or not to bear a child. There is an addition in the balance the constitutionally protected right to travel across state borders. There is the constitutionally protected right to privacy which I have alluded to. And there is finally, the absence of power in the State of Virginia at all to regulate the contrary in any state -- the absence of power in any state to regulate the conduct of its citizens out of state in ways that have no contact with Virginia at all except the fortuitous fact of residency. And I think in fact that the last reason is virtually dispositive of this case, because it seems to me unarguable that the states cannot forbid its citizens from engaging in acts which are lawful outside the state, and if it cannot forbid that then it cannot forbid it advertising of those activities. Didn't I correctly understand you to concede that the State of Virginia or any state could forbid members of the medical profession from advertising to perform any kind of services including abortion, specifically in abortion?
Melvin L. Wulf: No, I didn't concede that Your Honor. I concede that there's great power in state to regulate delivery of medical services.
Warren E. Burger: I thought you said that they could forbid the doctrine, they couldn't forbid the newspaper from taking the ad?
Melvin L. Wulf: I said more generally that producers of good -- I think what I said was the produce -- at least what I intended to say was producers of goods and services could be prohibited from advertising in some cases, which I don't have to define that there is a difference between prohibiting them from advertising and prohibiting and penalizing newspapers for running the advertisement. So, I did not concede that physicians could be prohibited from advertising --
Warren E. Burger: Some of the members of the Court in the Pittsburgh Press case thought that employers might be prohibited from specifying certain factors in employment ads but the newspapers could not. I think there was some concession work in the case.
Melvin L. Wulf: Yes. No, I say, in general, I agree with the minority's view in Pittsburgh Press about how to deal with that problem, prohibit the advertiser and not the newspaper. Your question was specifically whether the states could totally ban physicians from advertising their services. The Court's never decided; it's come close to it perhaps in the Head case although that there were no First Amendment issues raised there. I suppose I'm affected by our culture in thinking perhaps that states can prohibit physicians from doing it because they do, but I don't know that there's ever been a serious First Amendment objection to that to present to this Court or any other court.
Thurgood Marshall: Isn't it true that the pressure here really put on the doctor who does the advertisement and not on the paper who carried it?
Melvin L. Wulf: I beg your --
Thurgood Marshall: Isn't the usual pressure on that doctor not to use the newspaper rather the newspaper who published it?
Melvin L. Wulf: Well, surely I think the pressure is a thread of being disbarred on -- yes, and not on the newspaper because the doctor, I think in practical terms doctors -- I don't recall ever seeing an advertisement by a physician for standard medical services.
Thurgood Marshall: What if there have been Dental?
Melvin L. Wulf: I'm sorry?
Thurgood Marshall: There have been Dental cases?
Melvin L. Wulf: Yes, there was a case the similar case here of course upheld the power to prohibit that but again there wasn't any First Amendment issue raised there.
Potter Stewart: It was the Head case wasn't it? At least that was one case that was oculist?
Melvin L. Wulf: That was oculist or optometrist. Well, that was --
Potter Stewart: Optometrist.
Melvin L. Wulf: Yes, yes. Again, no First Amendment claim raised there. There is of course the related interesting case and cited not on our brief but in the brief of the amicus curiae the Virginia Consumer Council case, brought by consumers rather than pharmacists attacking a prohibition against pharmacists advertising prices of prescription drugs. And I would think that perhaps the same constitutional approach might successfully be taken with respect to advertising by physicians, where it's a consumer issue. Indeed as to advertising by attorneys as well.
Lewis F. Powell, Jr.: Mr. Wulf, you pointed out that this advertisement related to abortions in New York where they were practically illegal, suppose you'd had an advertisement for narcotics in Virginia, the ad indicating that if you got in touch with a certain individual, he could direct you to a place where narcotics could be obtained?
Melvin L. Wulf: I think that could be prohibited indeed. I think -- I don't know that that speech I think that's probably criminal solicitation assuming that a particular narcotic was forbidden validly by the statutes of Virginia or whatever state.
Lewis F. Powell, Jr.: Would your answer be the same if five years ago before this Court's decision on abortions, this ad had related to abortions in Virginia where at that time they were illegal except under certain circumstances?
Melvin L. Wulf: I don't think so Your Honor because I think that we must look not only at the question of whether a particular service or goods is prohibited but we also have to look at the nature of the service or the goods. And I think that whereas an abortion there was even then a very -- it was then a very controversial issue, there was a very substantial constitutional argument to be made out and behalf of the right of women to have abortions which was of course the ultimate result in this Court, and that there were the very substantial privacy claims on behalf of abortions that it would be a different case then the prohibition against advertisements for narcotics or for an assassin for example, things of that sort, where there was not the countervailing claims available on behalf of the consumer of the particular ban products.
Byron R. White: I thought you would (Inaudible).
Melvin L. Wulf: I wouldn't Your Honor where -- no, I don't think I said that, if I did I didn't intend to. What I was saying was that --
Byron R. White: But I think you would not say more?
Melvin L. Wulf: Well, I might make it but I don't have the additional argument that it could be prohibited because it was solicitation of criminal offense, but I don't. You asked me whether I would argue that, if there was an advertisement for assassin in a newspaper whether the --
Byron R. White: Unless assassins mentions for hire -- assassins for hire?
Melvin L. Wulf: I might make it but I wouldn't make it very confidently although I might argue that you couldn't proceed against the newspaper that you have to proceed against the advertiser. I might make that argument in that case also. On the question -- Mr. Lowe has his 10 minutes due right this minute. We spelled out in our brief why the advertisement isn't purely commercial which is the words used in Valentine and I would ask the Court to examine our reasons there in the brief. It surely is not a purely commercial advertisement in the circumstances of the subject being advertised. Thank you.
Warren E. Burger: Mr. Lowe.
John C. Lowe: Mr. Chief Justice and may it please the Court. Mr. Wulf has addressed the question of the First Amendment protections involved here and I will speak to the issue of the overbreadth doctrine relating to First Amendment issues on this advertisement that was placed here. First, we certainly contend that this advertisement was not pure commercial advertising, and I will address that specifically in a moment. We believe that there is ample evidence in the record of editorial position being taken within the advertisement and that this is a part of the editorial position of this paper. The overbreadth question of course --
Warren E. Burger: Do newspapers ordinarily accept pay for exercising the editorial function? Are you suggesting newspaper accepts -- will publish editorials for pay?
John C. Lowe: Your Honor, I am most certainly suggesting that in the context particularly of an underground newspaper where it's a hand to mouth operation where a dollar here and there helps to keep the paper going that they do accept fund from whatever source including accepting advertisement which follows their editorial policy and supports it, but which will provide some revenues, and in fact this is the case here. And I think that one of the points that has been raised is that this was a paid advertisement for a commercial profit organization. Now, the fact that it was paid has been disposed off in New York Times against Sullivan. That clearly does not remove the First Amendment protection. The fact that it was allegedly a profit-making organization is only in the record because of the May-June issue of the Virginia Weekly which is in the record in kind relating to an acknowledgement by the Weekly Staff on page 5 where it states, “The weekly collective has since learned that this abortion agency, as well as a number of other commercial groups aren't charging women for a fee for a service which is done free by Women's Liberation, Planned Parenthood.” In other words, this -- and this was submitted by the Commonwealth and yet does support factually the contention that at the time this ad was inserted, at the time the offense took place, the staff of this newspaper thought that they were simply one more group of the radical left wing or whoever it is, it is urging the editorial policy of this newspaper which was supporting it and was doing a free service to people that they genuinely felt needed abortion counseling. Only later they find that these abortion advertisement services, Women's Pavilion, was actually making money on it, and to their great chagrin they announced it here with some anger. I think that points out graphically that this was not a commercial advertisement in the sense that they knew this was a profit making venture, but rather was a part and extension of editorial policy.
Warren E. Burger: If an editor is so enthusiastic about a particular activity, he can promote that in his editorial columns and his news column without calling on ads, can't he?
John C. Lowe: He can and he does. In fact, in the May-June issue, there is editorial writing and I might point out Mr. Chief Justice that the Attorney General of Virginia has stated that this is not an underground newspaper or at least that there is nothing in the record. I think within the limits of the English language in the minds of man to create an underground newspaper, the May-June 1971 issue is such a newspaper if there are any at all. It has all the revolutionary rhetoric, all of the anti-establishment epithets, the whole spectrum of underground newspapership, and in fact it has, in many issues, and I believe in this one also, little boxes of information. If you want abortion counseling, contact Diane at a certain number or that type of information.
Warren E. Burger: Are these newspapers on the record?
John C. Lowe: The other ones are not. No, Your Honor, and one of the reasons and again I have to state that in the trial court in the initial two trial courts we have a two-tier system in Virginia of course. The issue of commercialism was never raised by the Commonwealth, never raised by the court and did not come up and there was no record made on it other than these two issues. The issue which is in whole and of course the advertisement itself, but in fact, the editorial policy is supported by advertisements by notices which you might call advertisement but which are really insertions of little boxes of information where you go for certain types of information if you want it. Now, in the context of the case of Broderick against Oklahoma which we have cited in our brief, this Court discussed the overbreadth doctrine, but in fact, I think Broderick really related more to a changing view where the First Amendment activity was conduct rather than speech. There, of course the Court stated that conduct would have to be real and substantial overbreadth if it were going to be overruled rather than in a pure speech where a defendant or an appellant could assert hypothetical rights of others in overturning a statute. Now, the Attorney General in this case does not really contest the idea that this might be overbroad if it is a First Amendment issue, but merely contests the standing and says there is no First Amendment issue here. We have of course a pure speech question here. I don't think there's much question that we're not involved in conduct. This is an advertisement, it's a mere advocacy insofar as it had editorial content and we believe that the, as I have mentioned before, the commercialism does not really get in the way of a fact that it is pure speech. We believe that the record itself shows that there's an editorial policy which is supported by the advertisement. Now, in the context of Broderick, we do have a very substantial overbreadth here. The hypothetical situations we have outlined in our brief are very substantial. Under the Virginia law, a doctor could not advise his patient to have an abortion. A husband could not urge his wife to have an abortion if they had an unwanted pregnancy. An editorial in a newspaper could not urge abortions to cut down on population explosions, speeches, the zero population group, all of these groups would be illegal if they so much as urge abortions. This was a very burning social issue particularly before the Roe against Wade and Doe against Bolton decisions, and it is still a very burning issue. Now, the fact that there is a substantial chill on First Amendment activity is pointed out by the Commonwealth Exhibit number 3 in the record which is a Cavalier Daily, University of Virginia newspaper of 1970 in which there was an article attributing to the Attorney General of Virginia a warning to the Virginia Commonwealth University School Newspaper that they better not publish any abortion advertisements for abortion referrals. I think that clearly when the Attorney General of Virginia issue warnings you must have chilling effect on rights. Now, we again following, the Broderick type of analysis, we do not have here an ordinary criminal law. This is a law which is specifically designed and aimed at abortion advertisements and not illegal advertisements in general. And in response to your -- further response to your question Mr. Chief Justice as to whether a state, for example, could not prohibit absolutely advertisements with rates listed in there, I think that Pittsburgh Press teaches us that if the advertised information is itself illegal, such as discriminatory sex hiring, then that is a different category entirely and if the state, for example, prohibited physicians from advertising rates or from posting rates or from telling people rates of abortions, then I think clearly they could then under Pittsburgh Press find the advertisement to be an illegal one. Now, we disagree with Pittsburgh Press but that I think I have to concede if I can see that the court is talking about Pittsburg Press. In addition, I think the real danger there is that the state would come up with law that says, it shall be unlawful for a newspaper to publish an ad which is illegal, and leave it up to the press to worry in advance of every advertisement it put in whether it might violate some hiring law or might some housing law or some professional law at the risk of publishing at all to where newspaper perhaps would have to restrict greatly the type of ads that it took. Again, I would emphasize that abortions were legal in Virginia when this case came down, when charge was made. True, there were certain types of abortions which were not legal but there were legal abortions, so that this was not an advertisement for an illegal activity even in Virginia, and following the Fifth Circuit case which this Court denied certiorari to, the Hyatt against United States which we have cited in our brief. In Hyatt there was an anti-divorce advertising statute, and the Fifth Circuit specifically said, "It would be one thing if you prohibited advertisement of divorces which were fraudulent or somehow illegal." And in this context if this were a well drawn statute, narrowly drown to prohibit illegal abortions in Virginia, those which were illegal under Roe v. Wade --
Byron R. White: Well, what about the -- what about the law, doctors may not advertise the newspapers may not carry their ads?
John C. Lowe: I think the first will Mr. Justice White that that is --
Byron R. White: Yes, that is narrow?
John C. Lowe: I think that would but I think that would be overbroad in sweeping in much conduct which would not be proper now --
Byron R. White: Like what?
John C. Lowe: Well, for example I think that there -- well, of course obviously adopted to advertise for health.
Byron R. White: Well, they don't have to ask for their medical services.
John C. Lowe: I would have to say Mr. Justice White --
Byron R. White: Well, let's just make it as narrow as you can possibly imagine and so that you have to get down on the substitute --
John C. Lowe: Yes, sir.
Byron R. White: -- and not talk about overbreadth.
John C. Lowe: Alright, of course I take --
Byron R. White: May the press be permitted to carry the ad of a person who is forbidden to publish an ad?
John C. Lowe: I would have to first answer somewhat as Mr. (Inaudible) had just answered that I must answer that in a context of the First Amendment as this Court has handed down through decisions. And I believe that this Court's decisions would say that a state could do that. I don't happen to personally agree with it but I believe that I would have to interpret it in that context given the decisions which this Court has handed down. Yes, I think the state could do that --
Warren E. Burger: Pittsburgh is the one that you would center on?
John C. Lowe: I think I would center on Pittsburgh.
Warren E. Burger: Because it's the most recent or the most definitive?
John C. Lowe: No, I think it's just the most definitive on point there, and again I have not -- we have dealt in the terms of an abortion referral agency which I think it's a little different than a professional, a doctor. Here, they're offering information, they're offering and perhaps they call it conduit, but they're offering directions; they're not offering a specific service that's performed on the patient.
Byron R. White: Well, wasn't there some flavor of this in the Virginia Court's opinion in this case?
John C. Lowe: Oh! I think that there was such a flavor, yes.
Byron R. White: That the doctors shouldn't advertise; the newspaper shouldn't carry their ads?
John C. Lowe: I believe that that is the part of the basis, yes. Mr. Chief Justice, I see that my time is up and I will (Inaudible).
Warren E. Burger: Mr. Lacy.
D. Patrick Lacy, Jr.: Mr. Chief Justice and may it please the Court. The question in this case is not whether 18.1-63 denies a woman, a right to have an abortion or interferes with the right of a woman to have an abortion. Clearly it does not. This is not an abortion case; it is a First Amendment case. It's important to note at the outset, however, that the appellant does not contend that the statute was passed with intent to muzzle or curb the press or that the statute has the effect of threatening the financial viability of the newspaper or that the statute in pass in any significant way, the newspaper ability to be published or distributed or that the statute infringes upon the layout or organizational decisions of the newspaper, nor where the record support any such contentions. The appellant was convicted for running in his newspaper, a purely commercial advertisement for a commercial abortion referral agency. The question in this case then is whether the state is barred from prohibiting purely commercial advertisements for the sale of medical services. The Supreme Court of Virginia found the advertisement to be purely commercial. This finding is amply supported by a fair reading of the advertisement itself. As stated by the court below, the advertisement constituted an active offer to performance a service. It clearly does not have the attributes nor does it serve the vital function of constitutionally protect of speech. The court below correctly recognized the fact that they had clearly exceeded in informational status, while the appellate would have this Court extract a few line here and there from the advertisement and be blinded to the remainder. This cannot be done. The advertisement is a single document contained within four corners. It appears on page 3 of their brief. Each line, each statement is geared to making the offer sufficiently attractove to entice would be purchases of the service.
Byron R. White: What -- did you find any evidence that the statute was based on anything other than an assumption that a newspaper shouldn't advertise or services that were illegal?
D. Patrick Lacy, Jr.: No, sir. The underlying, as stated by the Supreme Court of Virginia and given into construction of a statute, the underlying basis of the statute is that there should be no advertising, commercial advertising of medical services. There should be no commercial pressure or practices through the use of commercial advertising. The case as was decided by the Supreme Court of Virginia was not decide on the basis of whether abortion was or was not illegal.
Byron R. White: Do you think that the -- just a specialize application of the general prohibition against advertising by doctors?
D. Patrick Lacy, Jr.: That certainly was a holding of the Supreme Court of Virginia. They didn't state on those words but they said this is a prohibition against commercial practices and pressures directed to free the medical health field of commercial issue, and cited -- it cited Semler versus Dental Examiners and Williamson versus Lee Optical Company standing for that proposition.
Thurgood Marshall: Well, what business that it have -- Virginia would have to New York medical?
D. Patrick Lacy, Jr.: Well, the business of Virginia obviously we cannot tell New York what its law should be. We cannot prosecute a woman who goes from Virginia to New York at that time to obtain an abortion, but we can say that if you come to Virginia and you want to advertise medical services in Virginia we have --
Thurgood Marshall: But they're not advertising medical services in Virginia. They are advertising medical services in New York.
D. Patrick Lacy, Jr.: But the advertisement is in Virginia, the actual advertisement of medical services is in Virginia, although the medical services are going to be performed in New York, the advertisement for those medical services is in Virginia.
Thurgood Marshall: And how is it going injure the Commonwealth of Virginia?
D. Patrick Lacy, Jr.: Well, the same way in advertising from medical services that would be performed to Virginia could harm a woman. That is that --
Thurgood Marshall: You're talking about “medical services in New York City” or rather “medical services outside of the Commonwealth of Virginia?”
D. Patrick Lacy, Jr.: Correct sir.
Thurgood Marshall: That's what you're seeking to regulate.
D. Patrick Lacy, Jr.: The statute --
Thurgood Marshall: Do you think it's prohibited?
D. Patrick Lacy, Jr.: We're not seeking to prohibit -- this statute is not a statute of prohibiting abortion, no sir.
Thurgood Marshall: What is prohibited then people from traveling to New York to get one?
D. Patrick Lacy, Jr.: No sir, it is not. There's no --
Thurgood Marshall: Well, what is it?
D. Patrick Lacy, Jr.: There's no statutory prohibition against the woman leaving --
Thurgood Marshall: What it is, it's just penalizing the newspaper for publishing it?
D. Patrick Lacy, Jr.: No sir, it's a statute intended to keep commercial -- purely commercial advertising out of the medical health field. There'd be no difference between this statute if --
Thurgood Marshall: Well, could you prohibit them from advertising Alka-Seltzer?
D. Patrick Lacy, Jr.: Well, Alka-Seltzer, I don't think is within that frame of medical health. It's a none proscription.
Thurgood Marshall: Well, Aspirin?
D. Patrick Lacy, Jr.: I think they could prohibit --
Thurgood Marshall: Aspirin is slightly medical?
D. Patrick Lacy, Jr.: I think they could prohibit proscription drugs then you get in the --
Thurgood Marshall: Could they prohibit the advertising to people of Virginia that you can buy Aspirin in New York?
D. Patrick Lacy, Jr.: No sir, but not for the reasons --
Thurgood Marshall: And the difference between that and this case is just what?
D. Patrick Lacy, Jr.: The difference between that case in this case is the fact that abortion is a medical procedure. This Court has so held; in Roe v. Wade and Doe v. Bolton this Court held that in abortion is a medical procedure. It struck down to statutes before in Roe v. Wade and Doe v. Bolton precisely, because the states in those particular instances, refuse to recognize the fact that it was a medical procedure. And those cases extol the virtues of professionalism in the abortion decision in the first trimester. Those cases extol the virtues of the physician-patient relationship in the first trimester. To strike the statute down would be totally inconsistent with Roe v. Wade and Doe v. Bolton. The purpose of this statute is to promote professionalism to keep, to make sure that person --
Thurgood Marshall: Professionalism in New York?
D. Patrick Lacy, Jr.: Professionalism -- anybody wants to render medical services to individuals in Virginia.
Thurgood Marshall: In New York?
D. Patrick Lacy, Jr.: We have the right to make sure --
Thurgood Marshall: You make sure that New York does its medical job properly?
D. Patrick Lacy, Jr.: Make sure that anybody who comes down to Virginia and advertises in Virginia. A doctor from New York who came down -- who would come down and advertise and that goes back.
Thurgood Marshall: I don't think you had anything to do with this, if this was -- and advertise would mail down through the mail, you don't want to have anything to do with that, because of interstate commerce, and they sent it down and sent the check and then they published it. And how did that injure Virginia?
D. Patrick Lacy, Jr.: It's not a question of -- you can't point to the injury right there.
Thurgood Marshall: Could you pass a statute to say that no woman in Virginia can go to New York and get an abortion?
D. Patrick Lacy, Jr.: Absolutely not.
Warren E. Burger: The Supreme Court of Virginia seemed to put it on the basis of Virginia's sovereign power to protect its citizens, did it not?
D. Patrick Lacy, Jr.: Precisely sir, the police power to protect the health and welfare of its citizens. Obviously it could not pass a statute saying that if you advertise medical services in New York, you can be convicted. That's not the case at all. Cases here that a Virginia doctor who advertises can be regulated, an out of state doctor who advertises can be regulated, because the purpose, the purpose is to make sure that the person who's rendering the services is interested in the welfare of the patient and not in financial gain.
Lewis F. Powell, Jr.: Mr. Lacy.
D. Patrick Lacy, Jr.: Yes, sir.
Lewis F. Powell, Jr.: Suppose the advertisement had advised readers where they could get the best appendectomy in Virginia, is there any statute in Virginia that would proscribe that type of advertisement?
D. Patrick Lacy, Jr.: Am I to understand Your Honor from the hypothetical that it would be no profit, it's just an informational bulletin.
Lewis F. Powell, Jr.: No. Let's assume it's a commercial ad. You have pointed out that this case did not turn on whether or not abortions are legal or illegal. You are emphasizing, as I understand your argument that Virginia has the right to proscribe advertisements of medical services whether they are legal or illegal? I was just wondering, I don't know whether there is a statute in Virginia that would prevent to somebody advertising what is a perfectly normal legal service in Virginia. I'm not talking about medical ethics at the moment, I'm talking about one is the statute and if there is, would that statute withstand a First Amendment attack?
D. Patrick Lacy, Jr.: Well, the answer to your first question or your second question first Your Honor, I believe it would withstand and I believe the state has a valid interest in seeing that medical services, medical procedures are not advertised, in seeing that doctors don't say, I perform or I specialize in hemorrhoidectomy or whatever it may be called and my price is so and so or something this. Well, I think the state has a valid interest. Secondly, there is a statute in Virginia Mr. Justice Powell 18.1-417.2, if my memory serves me correctly that addresses itself to medical referral agencies, those pass subsequent to this case even -- well it's just passed recently. But I do not believe that it reaches directly to advertising question. But of course advertising could I think come within its number there. But to answer your second question first a very definitely that's the very point we're making. It's not the question of whether the services are legal or illegal. It's a fact that the State of Virginia, the general assembly of Virginia has the authority to determine that the advertisement of medical services, the advertisements of doctor services.
William J. Brennan, Jr.: I wonder how far this goes. Suppose this ad, instead of appearing in this newspaper, I gather, published in Virginia had appeared at New York Times, could this statute be applied to distributor of the New York Times in the State of Virginia?
D. Patrick Lacy, Jr.: Well, that the statute itself only pertains to people who publish it or who cause it to be published. Now whether it could be -- I really don't think it would be enforced as to the newsboy who might deliver --
William J. Brennan, Jr.: Whether if it's enforced or not. If the statute reaches the distributor of the newspaper it did, could be --
D. Patrick Lacy, Jr.: Well, first of all I don't think it would apply to the distributor. Did you ask me second question would be what?
William J. Brennan, Jr.: Yes. I'm wondering how far you carry your power of the state argument.
Warren E. Burger: As to who can be prohibited?
William J. Brennan, Jr.: Yes.
D. Patrick Lacy, Jr.: Well, we certainly --
William J. Brennan, Jr.: Reversed and appeared not in this paper but in New York Times. New York Times, I gather, is sold in Virginia.
D. Patrick Lacy, Jr.: It is sold in Virginia, yes sir.
William J. Brennan, Jr.: Could it be distributed (Voice Overlap)?
D. Patrick Lacy, Jr.: No, sir.
William J. Brennan, Jr.: Why not? What's the difference between the distributor in New York Times and publisher of this little paper?
D. Patrick Lacy, Jr.: Well, one big factual difference is that this person, the appellant in this particular case is a person who actually published it. The distributor, the poor news boy out on the corner --
William J. Brennan, Jr.: Well, I'm assuming a statute would reach those other than distributor.
D. Patrick Lacy, Jr.: Oh! I'm sorry. Without any sign or anything at all --
William J. Brennan, Jr.: There's nothing except what -- you have this advertisement in New York Times instead of the newspaper distributed in Virginia?
D. Patrick Lacy, Jr.: I think so for this reason.
William J. Brennan, Jr.: It could?
D. Patrick Lacy, Jr.: Yes sir, I think so for this reason. Let's assume that a doctor works up a handbill, setting forth that he specializes in tonsillectomies and he has specials on every Wednesday and Friday in a certain hospital, if you care to come by. He prints them up and he gives them to people, friends of his and says, how about handing them out? I think we could stop those people from handing those things up.
Byron R. White: And from putting the ad into a newspaper, advertisement?
D. Patrick Lacy, Jr.: Precisely, yes sir.
Warren E. Burger: And do you think your statute 18.163, as it existed, went that far?
D. Patrick Lacy, Jr.: No, sir.
Warren E. Burger: And it says if any person by publication much your advertisement or by the sale or circulation of any publication, wouldn't that cover Mr. Justice Brennan's hypothetical?
D. Patrick Lacy, Jr.: The sale circulation, I think it's the economic activity, obviously it probably would in that particular instance.
William J. Brennan, Jr.: So the New York Times is in trouble if it carries its ads on the paper of Virginia?
D. Patrick Lacy, Jr.: No sir, it's not in trouble now.
Warren E. Burger: Do you think --
D. Patrick Lacy, Jr.: The statute [Laughter Attempt] -- the statute is no longer here. We're talking about a statute that it's been effectively repealed by amendment over two and a half years ago. In essence, we will never know -- the statute was in the existence from 1877 and this is a first --
William J. Brennan, Jr.: They effectively repeal what has been repealed?
D. Patrick Lacy, Jr.: Well, no sir what I mean is that it was amended I said effectively repeal by amendment. What I mean is it's been changed now to refer to abortions which are intended to be performed in these states which are illegal in the state and there are no illegal abortions in Virginia.
Warren E. Burger: In other words, that would be procedures by other than licensed physician? Is that the --
D. Patrick Lacy, Jr.: Excuse me sir, I didn't -- I'm sorry.
Warren E. Burger: I understood your last statement that was limited to abortions that were illegal in Virginia.
D. Patrick Lacy, Jr.: That's the amended version.
Warren E. Burger: Of statute?
D. Patrick Lacy, Jr.: Yes, sir.
Warren E. Burger: That simply means that it's the one that's performed by someone other than a physician then?
D. Patrick Lacy, Jr.: Precisely, we had -- we have to follow the decisions of this Court in Roe v. Wade and Doe v. Bolton.
Warren E. Burger: But they have nothing to do with advertising of medical services as I think Mr. Justice Powell pointed out. I think the offense agreed to without and by implication.
D. Patrick Lacy, Jr.: I'm sorry.
Warren E. Burger: This is a case involving advertising not the whole of the conduct.
D. Patrick Lacy, Jr.: Precisely, but what the General Assembly did Your Honor up to the appellant's conviction -- and there's nothing in the record show they did it with regard to this case or not it was done. It's just a cold, hard fact that the statute was amended. They just changed the terms of the statute --
Warren E. Burger: Did you tell us that this was the first prosecution under the statute in modern times?
D. Patrick Lacy, Jr.: The best information I have is not only in modern times but in any time. I think the statute was passed in 1878, if my memory serves me correctly, and this has been the only. I would also draw the Court's attention to the fact that when Mr. Lowe was up he called the Court's attention to an editorial on abortion which appeared in the subsequent issue of this very paper published by the appellant, and for which the appellant was never arrested or convicted or any sort. The statute is not meant to direct itself to editorials. It's not meant to address itself to informational burdens. It's meant -- the Supreme Court of Virginia has construed the statute to pertain only to commercial advertising of these abortion services. The advertisement does not express a position whether a woman should bear a child, nor does it criticize Virginia's abortion laws or their enforcement. Now, the appellant does contend that the mere running of the advertisement constitutes an implicit editorial opinion on the subject matter of the ad. Such a contention however is totally lacking the support in the record. There's no evidence in this record that the newspaper had a perfectly acknowledge policy of accepting certain advertisements and rejecting others. To be sure, the concept that the mere running of an advertisement constitutes in editorial endorsement of the subject matter of the ad would undoubtedly appall the editorial's test of the nation's newspapers. The fact that they ran an ad in their newspaper and the mere running of that advertisement constituted an editorial opinion would undoubtedly appalled. In short, the commercial advertising in this case is not stripped of its commercial character in any way, shape, or form by editorial judgment. The advertisement published by the appellant does nothing more than propose a commercial transaction, and because it is pure commercial speech, it is unprotected by the First Amendment. Unlike the commercial advertisement -- excuse me, unlike the non-commercial advertisement in New York Times versus Sullivan, this advertisement did not express opinion, recite grievances, protest claim abuses, or seek financial support on behalf of any movement. Pure commercial speech is neither intended to be nor does it have the effect of contributing to public debate like the ad in question here, its intent and effect is simply to propose a business transaction. Because we are dealing with pure commercial speech unprotected by the First Amendment, we turn then to what is the interest of the Commonwealth. The interest of the Commonwealth as I related earlier to Mr. Justice Marshall is that the Commonwealth has a right, a valid interest, in saying that people who render these important services are not motivated of pure of financial gain. They do not get into unseemly cut rate actions that they are interested in the welfare of the patient. If my reading of Roe v. Wade and Doe v. Bolton is correct, this Court bottom its decisions on the professionalism, on the professional judgment of the doctor in the first trimester. This statute like Roe v. Wade and Doe v. Bolton vindicates that professional judgment. The Supreme Court of Virginia found that this statute was directed to commercial advertising and it was directed to the purpose of keeping these commercial practices and pressures out of this field. I would call the attention of the Court to the New York cases cited by the Supreme Court of Virginia in its decisions, cases in which it was found abortion referral agencies for profit abortion of referral agencies where during substantial amount of advertising where acting as little men for doctors, were soliciting for and splitting fees with doctors. And most importantly, those cases disclosed that these abortion referral agencies had no follow up procedures after abortions that the women were cast off after the service have been performed.
Thurgood Marshall: How does that interpret an Act passed in 1872 as to what New York is doing there?
D. Patrick Lacy, Jr.: Well, the Supreme Court of Virginia interpreted the Act.
Thurgood Marshall: On the basis of what's going on now in as to compared to 1872?
D. Patrick Lacy, Jr.: That could just easily have gone in Your Honor, but I submit that the Supreme Court of Virginia supposed we have no legislative history as you may know in Virginia versus Sullivan do we have legislation --
Thurgood Marshall: Do you know, the Supreme Court of Virginia knows one single thing about what goes on in the matter of profession in the State of New York, am I correct?
D. Patrick Lacy, Jr.: We know from the New York cases, the Supreme Court of Virginia cited the New York cases.
Thurgood Marshall: That's all you know but you don't know how -- the Commonwealth of Virginia takes position that the medical profession is -- New York has long or (INaudible)?
D. Patrick Lacy, Jr.: No sir, but the thing -- but the point is Your Honor that we don't have to wait. We're not saying that all physicians in New York, Wisconsin, or Texas, we're not saying that at all.
Thurgood Marshall: It was decided in Virginia to advertise in New York is wrong.
D. Patrick Lacy, Jr.: Well, we've --
Byron R. White: Now do you -- Mr. Lacy, do you have a -- is there before us in the brief story where the new statute in Virginia -- the text of it?
D. Patrick Lacy, Jr.: Yes sir, for definitely.
Byron R. White: Where?
D. Patrick Lacy, Jr.: At page 4 of our brief in the footnote if Your Honor please footnote 2 on page 4.
Byron R. White: So that is the effective statute. Now, is it your position that if there was any overbreadth problem, it's cured by that statute?
D. Patrick Lacy, Jr.: If the rationale -- Our rationale is underlying that overbreadth doctrine's chilling effect on First Amendment rights or maybe possibly selective enforcement of the statute -- if the statute is unenforceable those things cannot even exist.
Byron R. White: So, you're saying that the present statute merely prohibits advertisings about illegal abortions.
D. Patrick Lacy, Jr.: But that's what the statute says.
William J. Brennan, Jr.: Well, the present statute wouldn't reach this advertisement?
D. Patrick Lacy, Jr.: Precisely, precisely. Nowhere reach anybody --
William J. Brennan, Jr.: It wouldn't reach anything except promoting what would be in illegal abortion.
D. Patrick Lacy, Jr.: Precisely.
Byron R. White: But there are still illegal abortions. I feel by people that were (Voice Overlap).
D. Patrick Lacy, Jr.: Oh! Excuse me, you're precisely correct. There would be in --
Byron R. White: And in order there are still some abortions that are illegal?
D. Patrick Lacy, Jr.: I'm talking in terms, we had a statute in Virginia or have a statute in Virginia almost identical to the Georgia statute in Doe v. Bolton if that's what referring to. Because the overbreadth doctrine represents an exception to the traditional rule of standing that people cannot raise the hypothetical cases of other, it should be use only sparingly and as last resort, as I just mentioned just in, application of overbreadth doctrine in this case would strike down to statute, which is unenforceable. Secondly, I would like to point out that the appellant has raised this morning, the hypothetical cases of a doctor and a hypothetical cases of a lecturer and a hypothetical cases of a woman and a husband and of an editorial writer. First of all, we know that the appellant in this case has written editorials which have not been prosecuted, but also the Supreme Court of Virginia expressly rejected those hypothetical cases. It expressly rejected them, and now the appellants says its dictum. If the Court please, when the Supreme Court of Virginia says, "We do not consider the statute to encompass those cases." We read that to mean that's precisely what they mean that it does not encompass those cases. Furthermore, the Supreme Court of Virginia has authoritatively construed the statute to prohibit only commercial advertising. So therefore, it would not even reach a husband and wife discussing or a doctor and patient discussing it. It's our position that an application of the overbreadth doctrine in this case would simply result in a windfall for the appellant.
Byron R. White: What do you think if the overbreadth -- let's assume the overbreadth argument is draw practical purposes out of the case, what do you think the issue is with respect to -- that's left in this case. There was a criminal prosecution?
D. Patrick Lacy, Jr.: Precisely Your Honor.
Byron R. White: And a conviction?
D. Patrick Lacy, Jr.: A conviction, yes sir.
Byron R. White: For doing what, for preparing an advertisement about an abortion or an illegal abortion or a legal abortion?
D. Patrick Lacy, Jr.: For curing and advertisement about a medical service to with abortion, abortion services, not illegal abortion services.
Byron R. White: And in your view, it doesn't make any difference whether legal or illegal?
D. Patrick Lacy, Jr.: Yes sir. Precisely -- it's the same point about Dental Services and similar Dental Examiners. The services were not legal, you know could've been legal or illegal it still proscribe --
William J. Brennan, Jr.: But I gather your whole point Mr. Lacy is that your Supreme Court has said this reaches on commercial ads, this is a commercial ad, there go the First Amendment argument fails, is that it? But you're right.
D. Patrick Lacy, Jr.: Purely commercial.
Byron R. White: Well, that maybe right about the old statute but that's a conduct for which this defendant was convicted wouldn't violate this new statute?
D. Patrick Lacy, Jr.: No sir, because it would have to -- well, it would have to be -- you gave me one example, I was to assume when I said that no illegal abortion in Virginia and you're correct in the -- that if they advertise that come down to the local midway --
Byron R. White: Now is there some general statute that prevents doctors from advertising it?
D. Patrick Lacy, Jr.: Yes sir, there is.
Byron R. White: Is there any general statute that says newspapers can't publish doctors ads for their services?
D. Patrick Lacy, Jr.: No, but they could be subjected to aiding and abetting and doctors do publish that.
Byron R. White: Well then, why did you tell me carrying an ad -- carrying that this -- the ad that's involved in this case wouldn't be illegal in Virginia?
D. Patrick Lacy, Jr.: This is not an ad by a doctor.
Byron R. White: It's an ad about a medical service, isn't it?
D. Patrick Lacy, Jr.: Well, you asked me whether we have a statute specifically drawn to doctors and I'm sorry.
Byron R. White: Do you --
D. Patrick Lacy, Jr.: Yes sir we do, specifically drawn to doctors.
Warren E. Burger: What if the doctor had his nurse, his receptionist put the ad in the paper, just simply giving out a name such as this one reliable medical referral service?
D. Patrick Lacy, Jr.: Could we prohibit that sir, is that your question?
Warren E. Burger: Does the present statute of Virginia prohibit that? I'm not talking about this new statute on advertising. You said Virginia has a statute prohibiting doctors from advertising medical services.
D. Patrick Lacy, Jr.: It's Section 54-317, sub-paragraph 13 and it says, "any doctor either directly or indirectly". So, if it were proven that he told his nurse to go do it, that's precisely correct. If I left you with a wrong impression I'm extremely sorry. We respectfully submit that the judgment of the Supreme Court of Virginia should be affirmed. Thank you sir.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: Number 75, Madeline C.Schroeder, versus City of New York. Mr. Scheinman.
Louis B. Scheinman: Mr. Chief Justice, Associate Justices of this Court. This is an appeal from an order on a divided decision of the New York Court of Appeals which held constitutional a statute in a condemnation proceeding and which statute was attacked in this case on the grounds that the notice provided therein was inadequate in order to comply with due process as guaranteed by the Fourteenth Amendment. For the reasons that the time that we have here today is short, I would like to forego speaking of the procedural aspects of this case and exactly how this case came to this Court except merely to point out that this was an action for an injunction brought by the plaintiff who was a riparian owner owning a home on the Neversink River. That the City of New York had acquired the right to divert that river in a condemnation proceeding brought in 1952 and that this claimant or rather this plaintiff here had no knowledge or notice of this proceeding whatsoever and brought this action for an injunction in 1959 after learning of the acquisition of her property or portion of her property by the city. The motion made here by the City of New York was for judgment on the pleadings and consequently all of the allegations of the complaint under New York law since this is a motion similar to the common law demurrer should be deemed true. There was a cross motion made by the plaintiff, the appellant here to dismiss the city's answer to the complaint. The Court of Appeals as I've said by a four-to-two decision held that the notice requirements of this statute were adequate. Now, the notice provided in this condemnation statute was notice that had no personal service or any effort at personal service provided in it. The statute required in addition to publication in the city record which is the official publication of the City of New York and not a newspaper commonly read. It also provided for notice in two newspapers published in New York City. These properties are of course considerable distances outside of the territorial limits of New York City and this notice relating to city newspapers, is primarily for the information of city officials and New York City inhabitants. In any event, the appellee here has never claimed that the notice in the New York City newspapers was even designed to calculate in any way to give any notice to the local property owners, many of whom are more than a hundred miles away from New York City.
Speaker: What's the purpose of that city notice?
Louis B. Scheinman: The only purpose that I can think of is to give notice to city officials, members of the Board of Investment and Board Water Supply and that -- their employees, the employees of the Department of Water Supply, Gas and Electricity and so on --
Speaker: Instead of writing them letters?
Louis B. Scheinman: Of the Water Supply project. I don't know of any other purpose that it can serve Your Honor. In any event --
Speaker: That's not claimed here to be significant as far as your problem is concerned.
Louis B. Scheinman: No, it does not. And the city does not even claim it to be any form of notice that is significant insofar as property owners are concerned. The remaining notice is that the notice of motion which the city is required to make in order to acquire this title be published in two newspapers located in the county in which the property is located. And the briefs here have shown how the city has deliberately used the lack of definiteness in the statute. The lack of any requirement that these newspapers be those published or having circulation in the area of the taking. But a -- just a general requirement that it'd be two newspapers in the county and I think the briefs have shown how the city has bypassed those newspapers which were like -- would possibly be likely to give notice in the area of the taking and has gone too far into the county to find small newspapers of limited circulation which could not possibly be expected or calculated to have any circulation whatever in the area of the taking in which to technically comply with this inadequate statute. There is one other requirement for notice and that is that handbills be posted in 20 conspicuous places in the area of the taking. There are 20 places in the vicinity of the taking. I think that is the way the statute reads. Now, that has been construed in this situation here to constitute 20 notices, the city actually posted 22 along a seven or eight miles stretch of river, which would naturally mean 14 to 16 miles of riverbanks. And which stretch of river had no less than 96 numbered parcels shown on the city's maps. That is 20 notices, 22 notices for 96 properties. And we know that not counting the riparian properties, those which are on the river and have their frontage right in the river, there are a great number of properties upland from the river which property owners have deed rights in their deeds to bathe, swim and to fish and use the river for various recreational purposes. Altogether, we would estimate that there are approximately 200 properties that are affected in this Neversink riparian Section Number 4, that's a seven or eight mile stretch of river. And for these 200 properties, there were only 20 notices, or 22 notices. The city did not even attempt to post these notices in public places but instead published -- posted them on trees and poles along the river and this was done in January for a motion returnable in March. And it was well known to the city that these properties in this area are -- some were occupied mainly. I believe that -- I will say nothing further about the publication used here because of the time. However, I do wish to point out that it is our position that even these posters and the city distinguishes between notice by publication and posting that even these posters are not in the least fit personal notice of any kind. And that is that there is nothing personal with respect to these handbills that are posted up along the river. The notice of motion is all that it is that is posted and that is all that it is that is published. It does not contain the names of any of the property owners who are affected. It does not advice them that there is anything that they have to do in order to ensure compensation for themselves. There is a statute of limitations here whereby if their claim is not filed within three years from the date of the title vest, they are barred from any compensation whatever. And the city has waited for that statute of limitations to expire in a great many cases and has refused to make any compensation whatever to those who failed to file claims within that time.
Arthur J. Goldberg: Is it conceivable that the property owners in there did not actually know that this thing was going on?
Louis B. Scheinman: It is not only --
Arthur J. Goldberg: (Inaudible)
Louis B. Scheinman: It is not only conceivable Your Honor but it is a fact that a great many of the property owners did not know. You take this particular property here which is 25 miles downstream from the location where the river has been diverted. That is 25 miles downstream from the dam. As the river travels downstream, it picks up waters from the tributaries so that despite the fact that there is a hundred percent or near a hundred percent diversion as the location of the dam, there was only approximately a 50% diversion at the location of this property here in Orange County. A 50% diversion does not make such a diversion apparent to the eye a layman. The height of the stream is still substantially the same. The thing that is drastically affected is its temperature, is its velocity of flow, is its carrying capacity, the fact that it no longer has a scoured and cleaned bottom but it's unable to carry silt or sedimentation. Now the stream was, before the diversion, a fleshy stream, that is that -- had its times when it was high and when it was low. It is really not possible for a layman to look at the river and to thereupon assume that there had been a diversion 25 miles upstream that -- it was a diversion by a municipality for water supply purposes and that it had to file a claim for compensation or was even entitled to compensation within any specified time. There was no way that a layman would know that unless that person happened to hear about it in some fortuitous manner. In any event the statute --
Speaker: (Inaudible)
Louis B. Scheinman: I beg your pardon?
Speaker: (Inaudible)
Louis B. Scheinman: In this case, although it does not appear in the record, there was a consultation with an engineer and the engineer told Mrs. Schroeder what had occurred and discussed with her the fact that she -- that this was an artificial diversion for which she had a right to file a claim for compensation. Now --
Earl Warren: Are the names of the owners and their addresses known to the condemning authority --
Louis B. Scheinman: Well, their --
Earl Warren: -- were it available to them?
Louis B. Scheinman: There was no question about -- but that -- that is so Your Honor. The city has denied that in answer -- answering brief here. However, if Your Honor would -- if Your Honors would examine the map which is defendant's Exhibit A in evidence here, Your Honors would see that the index shows Parcel No. 424 is listed to Madeline Schroeder. And if Your Honors would look at Parcel No. 424, you would see that its frontage in the river was mapped down to a tenth of a foot, that all properties are mapped down to a tenth of a foot. These maps are filed in the county clerk's office before the proceeding has commenced. And consequently, in order to obtain all the detailed information that the city has to obtain to prepare these maps, it has made deed studies and -- our deeds as mentioned in the complaint, it contains our address, the address of this property owner in New Jersey where she lives in the winter, and of course the city knows the address of the property it is taking, and knows the -- its post office address at the property itself. There was no question for that, the name and the address of this property owner was known to the city or could have been ascertained without any difficulty whatever. The tax rolls had her name and her New Jersey address for example. A letter mailed to her at the property would have been forwarded to her in New Jersey if it were done on the winter. She would receive it herself if it were done in the summer. There was no basis here to claim as the city has claimed that they were -- that they did not know her address, unless by that, the city means that some attorney or other official of the city wanted to know Ms. Schroeder address and just didn't think of what it was and didn't have it in his head because he certainly had it in his files. It's impossible to draw any other reasonable conclusion, if it please the Court. I would like to reserve a few minutes for rebuttal, if I may.
Earl Warren: You may.
Louis B. Scheinman: Thank you.
Earl Warren: Mr. Lee.
Theodore R. Lee: Mr. Chief Justice, may it please the Court. Preliminarily, I would like to establish that the city complied with the various provisions of the Water Supply Act, the Court of Appeals expressly found that the city had complied with those provisions. And I respectfully submit that, this Court is bound by that finding. I shall confine my argument in view of the limitation in our time today to the proposition that the notice provided by statute and given here was constitutionally sufficient. The handbills that were posted were printed with permanent ink on durable cloth, approximately two feet long by a foot and a half wide and they were firmly affixed to the places to which they were attached. This is a facsimile of the handbill and it's not likely that this handbill would be mistaken for a no trespassing, hunting or fishing sign.
Speaker: Without reading though, what is the substance of the (Inaudible)
Theodore R. Lee: It shows that the -- it's an application for appointment of commissioners of appraisal to determine damages to properties, these are riparian properties, properties that are located between Cuddebackville and Huguenot so that would definitely indicate this particular individuals' interest in it. Now, these --
Earl Warren: (Inaudible)
Theodore R. Lee: Yes, sir.
Earl Warren: Did this state any of the requirements so far as the individual is concerned?
Theodore R. Lee: Not except that on the particular day, an application will be made for the Commission to divert and -- for the appointment of commissions of appraisal. These (Voice Overlap) --
Speaker: There's a copy of that -- is a copy of that printed in the record?
Theodore R. Lee: On page (Voice Overlap) --
Speaker: On the briefs?
Theodore R. Lee: -- 21 and 22A, I think it is. I intended to making that but neglected to. Now, there were five sections here and there were 22 or 23 of these posters post up in every section which means that there were 112 posters all tolled in these proceedings. Now this present case furnishes a good example of how these posters were put where they were likely to be seen. The only way, absolutely the only way, they will get to the appellant's property is by turning off to Route 209, the road that roughly parallels the river on the west side on to a narrow, unpaved, dead-end road only three tenths of a mile long. And only the appellant's cottage and two or three other cottages were on this short road. Now, one of these handbills was posted right at the junction, the Route 209, and this short road where anyone turning off in view of the narrowness of the road, anyone turning off of the appellant's property couldn't possibly miss seeing that notice. And I say, whether she saw it or not, that anyone who saw that notice would observe, be likely to observe that it was a legal notice. And anyone of some kind, and anyone living on that short road would be likely to read it, to see if it applied to her property or her neighbor's property and if anybody did read it as I explained before that he -- put on notices to what this was all about.
Potter Stewart: Wasn't this case decided in the pleadings, judgment on the pleadings?
Theodore R. Lee: Yes, sir. It was on a motion on the judgment of the pleading.
Potter Stewart: And wasn't there an allegation in the complaint that she didn't --
Theodore R. Lee: There was no allegation in the complaint that -- well, no, there was a -- this was a situation, the complaint alleged that she -- before the retention of counsel in September 1959, that she was not aware of the fact that the city had acquired any portion of her property.
Potter Stewart: Yes.
Theodore R. Lee: She also said that, she was not aware of the fact that she had a right to file a claim but there I think it's very significant that she does not specifically allege that she was unaware of the diversion.
Potter Stewart: Well, it's at least ambiguous, isn't this something that -- let's assume that you're correct that whatever the shortcomings of a statute as to notice might be constitutionally, that if the petitioner had -- had actual notice and that could be shown that these -- that this -- in this case she was not deprived of her property by -- in violation of due process of law, but isn't that a matter of proof in view of the allegation of the complaint.
Theodore R. Lee: A matter to prove as to whether she had noticed it or not?
Potter Stewart: That's right.
Theodore R. Lee: I don't -- I wouldn't say so. By the way, I won't -- I might add this to clarify (Voice Overlap) --
Potter Stewart: And I mean, isn't --
Theodore R. Lee: -- even before --
Potter Stewart: What I'm really suggesting to you is that the -- you're telling us about where these notices were posted and so on and you tried to make that proof to us, but this was a case decided on the pleadings --
Theodore R. Lee: But the --
Potter Stewart: -- and the allegation to the complaint was she didn't know.
Theodore R. Lee: Well, in the record there is an affidavit of an Alfred J. May, which tells exactly where these posters were put -- afoot. Now, and I'll return -- I want to clarify this, you acted about what appeared in the complaint, in addition to the things I mentioned, it says that she wasn't aware of the proceedings. It didn't say that she was not aware of the verdict -- diversion since she was aware of the proceeding. Now, --
Arthur J. Goldberg: (Inaudible)
Theodore R. Lee: Sought to acquire -- sought to (Voice Overlap) --
Arthur J. Goldberg: (Inaudible)
Theodore R. Lee: -- acquire the right to divert. She said, she didn't acquire the right to divert, but that doesn't say that she didn't know about the diversion as I read it.
Potter Stewart: Well, at least it's subject to different readings, isn't it?
Theodore R. Lee: Well, (Voice Overlap) --
Potter Stewart: If you're right -- excuse me --
Theodore R. Lee: That the way I -- the way I interpret it, there are -- maybe to an actual amount of arguments over the subject, but it seems to me that since you put all of these different allegations in, that there's -- it looks like she carefully omitted to say she was not aware -- that she was unaware of the diversion.
Potter Stewart: Well, my only thought -- the thought behind my question was this, that if you are right, the actual knowledge, pure as any constitutional defect in the statute, that should -- or perhaps to be a matter of proof in this case rather than -- rather than to have it something decided on the -- on the pleadings.
Theodore R. Lee: Well, we're not depending so much on actual notice in this case under these circumstances. But the test that has been laid down by this Court in the preceding cases down to the years is whether or not the notice is reasonably -- kept reasonably calculated to come to the attention of the parties. And I say that, in view of the posting, in view of the publication, in view of the patently visible effect of the diversion, and in view of the nature of these proceedings, and the nature of the project which was so big that it would be bound to come to the attention of everybody around, in view of all of these circumstances, the notice given here, whether she saw it or whether she didn't see --
Potter Stewart: Well, what you're saying then is that --
Theodore R. Lee: (Inaudible)
Potter Stewart: -- this statute, whether she knew about it -- actually knew about it or didn't know it, this statute is constitutionally (Voice Overlap) --
Theodore R. Lee: Exactly and that any further --
Potter Stewart: So, if she showed that she was in Europe for ten years while this was going on and there was no caretaker in her property, still the state could do this to her (Voice Overlap) --
Theodore R. Lee: That is absolutely right that being a nonresident here, she would be under some -- a resident of New Jersey, she would be under some duty to come here because this notice in view of all these circumstances I make -- mentioned, this notice was so sufficient that it seems to me, to require any different or additional notice would be merely superfluous. Now the notice was --
Hugo L. Black: You make it -- you make it rather dangerous to own a property and not live on it, wouldn't it?
Theodore R. Lee: Well, I wouldn't say so, because this Court has said in a number of opinions if the nonresidents who live on property usually have a way of finding out things that are happening to their property. Now, in this particular case, she owned the property in New York and according to the allegation of the complaint and the statements in the brief, she spend about two months -- two months every year at this property. And its inconceivable to me how under those circumstances, she wouldn't hear about the construction of this huge reservoir and she wouldn't see this poster, and if she did see it, that she -- she wouldn't read it. But I say under all other facts and circumstances, this notice is given, we bear in mind that we are acquiring limited inputs, the right to divert here. And under these peculiar circumstances particularly, the notice given here was legally sufficient. Now, if I may address myself briefly to this newspaper -- these newspaper publications, the question was asked, I believe, by Justice Harlan, I believe it was in regard with the purpose of New York City papers. One of the New York City papers that was published then was the New York Times, and of course it has a circulation outside of the area. But I'm not stressing that so much as to indicate that -- I think it does have some tendency to give some notice. But my friend, Mr. Scheinman here has suggested that we should've had picked out different local newspapers in Orange County. And now, it happened -- and that he suggested, we should have published to newspapers in the cities in Orange County. But this is what I suggest and that is, those were weekly newspapers. It may be that their circulation wasn't as great as city newspapers might be. But when people read these weekly newspapers, they're inclined to read them all the way through including legal notices. And when they read them, they start talking about them, to their friends and neighbors. So, the Court of Appeals found, the majority of the court did, that these were appropriate newspapers.
Earl Warren: Was there any newspapers in the county that were closer to the diversion or to (Voice Overlap) --
Theodore R. Lee: There --
Earl Warren: -- of these properties (Voice Overlap) --
Theodore R. Lee: There were a couple -- I think one in Port Jervis and the other one I believe is -- was Middletown who -- that were somewhat closer to this particular property although the three immediate communities around closest to her did not publish newspaper. There were two city newspapers located in Orange County that were somewhat closer. I might say this in view of the statement in the appellant's brief. I don't know if it mentioned here, he said these newspapers were some 30 or 40 miles away. Actually by a road, there were 22 and 27 miles away respectively or direct -- in a direct line, 17 and six-tenths and 18 and two-tenths miles away. They weren't -- there were some distance away but they weren't quite afar away as suggested by the appellant.
Hugo L. Black: Does the record show whether the names and residence -- and addresses of the owners were available?
Theodore R. Lee: The record I think would show that the name was available. I do believe the record is silent as to whether the address -- there wasn't -- there was no allegation in the complaint and I think the record didn't -- is silent on that point in regard to whether the city knew the appellant's address although the appellant now contends that the city did. And the fact is that although -- of course, the city knew the location of this property, it didn't have the appellant's post office address.
Earl Warren: Home address, you mean?
Theodore R. Lee: Well, the -- there's a difference between the legal description of property and the post address. It's impossible to tell just where those lines are. And also from these deed studies that he mentioned, they were prepared by engineers for the purpose of preparing the maps and they showed only the names of the owners and the description of the property so that wasn't the source of information regarding -- regarding their address. In any event, the addresses are not a reliable source of informa -- deeds are not a reliable source of information concerning the addresses, bearing in mind there were over 400 properties involved in this proceeding. Many of the deeds would be old, the addresses of the grantors who were shown frequently not the addresses of the property and the addresses --
Hugo L. Black: Are there any taxes --
Theodore R. Lee: -- of the grantees are frequently the addresses from which they're moving instead of -- to which they moved.
Hugo L. Black: Any the taxes assessed against the property?
Theodore R. Lee: A tax -- taxes, I presume were -- would be assessed to the property and my friend, Mr. Scheinman, suggest that we should've consulted the tax records. But I submit and that's reasonable to do when the taxing authority of the condemnor is one of the same. But I call attention to the fact, here we were condemning interest in over 400 properties outside of the city limits and have a dozen different tax districts. And in view of the adequacy of the notice and the nature of these proceedings, I respectfully submit that there should be no requirement for us to look at all of these different tax records and all of these deeds because that would unreasonably delay the proceeding and put the city to an unnecessary expense in view of the other surrounding circumstances --
Speaker: Are these notices sent out from New York City, is that it?
Theodore R. Lee: The -- these particular notices were copies sent out from Kingston, New York. That is -- New York City Law Department has Water Supply Law Office in Kingston, New York and also one in Binghamton and in these particular notices were probably sent out from the Kingston office.
Speaker: Kingston office.
Byron R. White: As a matter of fact, you do not have the exact -- the exact file.
Theodore R. Lee: The names of the riparian owners we did --
Byron R. White: (Inaudible)
Theodore R. Lee: We did have -- we did not have the address. The names that the -- the names appeared on the map and this doesn't -- and we also, as I've said, in that deed study, we had a description of the property.
Speaker: (Inaudible)
Theodore R. Lee: Not the post office address.
Speaker: (Inaudible)
Theodore R. Lee: It is possible that through -- to searching the deeds or searching of the tax records, it might have been possible and I suggest that it should be required over the circumstances here where there's a limited interest being taken in -- for such a big project.
Speaker: These proceedings or the posting of the notices as I understand it took place in 1952, is that right?
Theodore R. Lee: That's right.
Speaker: And the action was brought in 1960?
Theodore R. Lee: That's right.
Speaker: Is there anything that accounts --
Theodore R. Lee: Because there was --
Speaker: -- for the eight -- nearly eight years delay?
Theodore R. Lee: Not that I can possibly see, it's seven and a half years after the taking and six and half years after the diversions. Instead of filing a claim within -- in the proceeding within the three years prescribed in the statutes, she waited all of that time and that's based (Voice Overlap) --
Speaker: The statute of limitation is what -- three years?
Theodore R. Lee: Three years.
William J. Brennan, Jr.: But she -- well, did she allege that she didn't know about her right of action until 1959, that's in her complaint?
Theodore R. Lee: But she'd -- but she doesn't allege what caused her after apparently being satisfied with the river.
Earl Warren: It's alright, go -- go right ahead, go right ahead.
Theodore R. Lee: After being apparently satisfied with the river for seven and a -- for six and half years after diversion --
Speaker: And the fishing had been (Inaudible) --
Theodore R. Lee: -- once she decides that she wants to bring this action, accept what complaints says that she wasn't aware of those -- these things that we've all --
Potter Stewart: And in this --
Theodore R. Lee: -- been talking about until she consulted counsel in September 1959 (Voice Overlap) --
Potter Stewart: In this case, we have to take (Voice Overlap) --
Theodore R. Lee: (Inaudible)
Potter Stewart: Excuse me, I beg your pardon. In this case we have to take what said in the complaint is true, do we not?
Theodore R. Lee: I would say so. I am not prepared to say anything different.
Potter Stewart: Well, you can't, because this was decided on the pleadings, isn't that correct?
Theodore R. Lee: That's right.
Potter Stewart: I mean, you can't and we can't and in the posture that this case is now in.
Theodore R. Lee: I would say that it's right on the record.
Potter Stewart: And I'd -- may I ask you one other question? The dissenters in the Court of Appeals, Judge Dye says at the bottom of page 51 of the record in the dissenting opinion that the city did have available, the appellant's address. And no reason appears why such a notice could not have been given, is that -- do you challenge that as a matter of fact or?
Theodore R. Lee: Oh, I presume, I don't challenge it to this extent. I presume by that -- by that he meant that we could've consulted tax records or looked at deeds and probably have done little more than we did -- do. That's the way I interpret that.
Earl Warren: Mr. Scheinman, you may --
Louis B. Scheinman: A few minutes if I may.
Earl Warren: Yes.
Louis B. Scheinman: With respect to the address, if the city would've merely mailed notices to each property owner at the location of the property, now Mr. Lee could not deny that it did not know the post office address at parcel number 424 which it had mapped on -- and placed on its maps. That property had a post office address, would've been no effort to find that one and a letter mailed to the claimant at that particular address would've certainly reached her. In any of event I say that this argument by the city at this point that it did not have the names, the addresses is truly not a fair argument for it to make for this reason. What if it did have their addresses? Each and every one of their addresses in -- at the property and wherever else they live, it didn't send any notices to anyone. No one received any mail from the City of New York as to this taking. It sent notices to no one, not even people who lived right at the riparian property. So, consequently their argument now that they didn't have the name and addresses is truly a much belated excuse and that's not a reason for not mailing notice. Certainly, with respect to Mr. Lee's statement that the newspapers were selected in Orange County because they were weekly newspapers and the two newspapers near this property, one just seven miles away and one published in the city eight miles away, both cities on either side of this property. And having circulation in this area, the reason that they selected these small newspapers as -- he states 22 and 27 miles away was that the other newspapers were weekly, and these city newspapers were daily. Well, if we look and see what the City of New York did in adjoining Sullivan County, we see that even that argument is not a sincere one. In Sullivan County Section Number 3 runs three miles east of the county seat of Monticello which publishes three weekly newspapers. Instead of publishing in those newspapers right in the vicinity of the taking and I might add that there were newspapers of both political faiths that that made any difference to the city selection of newspapers. They went to the far western end of the county in Callicoon, a newspaper that until its editor run for assembly, I, living in Sullivan County did not even ever hear off. And also published in a Liberty Advisor which is a giveaway newspaper, it's not even sold.Now, this is in the briefs. It's a newspaper which just contains advertisements and a few -- a few of these canned stories and is not even sold for two cents. It's just given away. And those of the newspapers of the City of New York used to give notice of this taking. In these communities in Section Number 4, there were three communities, Cuddebackville, Huguenot, and -- the name of the other community is just staging for the moment. Each of these communities have post offices, firehouses, grange halls, gas stations, the city posted no notices in any of these public places but stuck them up on trees in the wood -- in the middle of the winter. This notice may look pretty here. It's new and it's fresh and it's clean, but it doesn't quite look the same after it's been on a tree for long ago.
Hugo L. Black: May I ask you just one question?
Louis B. Scheinman: Yes, Your Honor.
Hugo L. Black: You've asked to enjoin this diversion?
Louis B. Scheinman: Yes, Your Honor.
Hugo L. Black: What does that mean?
Louis B. Scheinman: Well, this is the only type of an action. Actually, it could've been brought, that would place the question of title, squarely an issue.
Hugo L. Black: Are you claiming anymore than just compensation? Are you making --
Louis B. Scheinman: No.
Hugo L. Black: -- the right to make the city --
Louis B. Scheinman: No. I --
Hugo L. Black: -- that they can change the stream again?
Louis B. Scheinman: No. Your Honor, actually as we've explained in the briefs and as Judge Dye recognized in his dissent, its not practical now to have injunctive relief against the City of New York. But at the very least, the relief that could be granted if this case were remanded, reversed and remanded to the Court of Appeals, the relief as Justice Dye indicates would be that the city would have to give adequate notice to all of these people who are presently waiting with cases in lower courts throughout the state for the outcome of this case. These people would all be given further notice. They'd have their day in court and that's all that matters.
Speaker: How many cases --
Louis B. Scheinman: Thank you.
Speaker: -- you have in pending?
Louis B. Scheinman: Well, Mr. Lee can give Your Honor the exact answer. I say that there are two to 300. Mr. Lee knows precisely how many there are because claims are filed with the Law Department and he knows how many claims had been filed and rejected, I don't. I know this, that out of 224 mapped parcels, an examination of a certain record kept by the City of New York showed that less than half of the property owners filed their claims in time. I also know from other cases in the lower courts, this Riley case and the Nielson case mentioned in the briefs, several of them being representative cases involving many, many properties that there are hundreds of other upland properties which are additional to the 224 mapped on the city's maps, that a great number of which did file claims in time and a very great number of which, some of them -- which claims I have -- failed to file their claims in time simply because they were not aware of what had taken place in the river and incidentally --
Hugo L. Black: Do you construe (Voice Overlap) --
Louis B. Scheinman: -- our complaint specifically is very specific on that point.
Hugo L. Black: Do you construe your complaint as alleging and requiring you to prove in case you get a chance to prove it, that your client did not have actual notice of this diversion?
Louis B. Scheinman: Well, it would be simple not for us to prove Your Honor. I --
Hugo L. Black: I say, do you construe your complaint as alleging that, are we to (Voice Overlap) --
Louis B. Scheinman: Oh, yes.
Hugo L. Black: -- as alleging that your client did not have actual notice.
Louis B. Scheinman: Very definitely, Your Honor.
Hugo L. Black: And in (Voice Overlap) before the time that you filed this suit?
Louis B. Scheinman: Yes, Your Honor, there was just no question about that. We state it in several different respects and we also state very clearly and unequivocally that this woman had no knowledge of the city's application of the right to diversion --
Potter Stewart: But stated in the paragraph of the complaint?
Louis B. Scheinman: There's no question about it.
Potter Stewart: As pointed out --
Louis B. Scheinman: Yes.
Potter Stewart: -- there's no allegation -- there's no allegation that she didn't know what the river had been diverted.
Louis B. Scheinman: Yes, there's even that allegation.
Potter Stewart: Where is that?
Louis B. Scheinman: Well --
Potter Stewart: I couldn't find it in --
Louis B. Scheinman: I believe it's on page 10 or at the bottom of page 9 of this record.
Speaker: Page 9?
Louis B. Scheinman: Here it is, at paragraph 20 of the complaint, at the bottom of page 9, that the plaintiff has never been at any time notified in any manner that the City of New York sought to acquire the right to divert the Neversink River, just as clear as could be.
Speaker: (Inaudible)
Potter Stewart: What I meant was, there's no showing and I'm probably -- there isn't any allegation because probably the facts are -- couldn't support an allegation. She presumably did know that the river's course had been changed --
Louis B. Scheinman: It has not --
Potter Stewart: Is that --
Louis B. Scheinman: It had not been changed.
Louis B. Scheinman: That's the reason the layman cannot tell, the artificial diversion that has taken place.
Potter Stewart: And what's the damage to her property?
Louis B. Scheinman: The damage is at the bathing and the fishing has been destroyed.
Potter Stewart: I see, I --
Louis B. Scheinman: This Neversink used to be one of the most famous trout streams.
Potter Stewart: I see.
Louis B. Scheinman: East of the Mississippi River.
Hugo L. Black: And that's recognized as a property right under the laws of New York?
Louis B. Scheinman: No question about that, Your Honor --
Potter Stewart: Riparian land?
Louis B. Scheinman: The awards -- the awards on these properties have run some -- in the commercial properties to a hundred thousand dollars.
Speaker: (Inaudible)
Earl Warren: Very well.