COMMERCE, COMMUNICATION, AND THE CONSTITUTION

Two centuries after Patrick Henry of Virginia uttered the celebrated words "but as for me, give me liberty, or give me death!," ¹⁷⁰ the keepers of the American Constitution extended that liberty to classified advertising. In 1975, Justice Blackmun's First Amendment was recruited in the service of an advertisement in the Virginia Weekly, which read:

UNWANTED PREGNANCY
LET US HELP YOU
Abortions are now legal in New York.
There are no residency requirements.
FOR IMMEDIATE PLACEMENT IN
ACCREDITED HOSPITALS AND
CLINICS AT LOW COST
Contact
WOMEN'S PAVILION
515 Madison Avenue
New York, N.Y. 10022
or call any time
(212) 371­6670 or (212) 371­6650
AVAILABLE 7 DAYS A WEEK
STRICTLY CONFIDENTIAL. We
will make all arrangements for you
and help you with information and
counseling. ¹⁷¹

That the First Amendment should be enlisted to protect such communication is not surprising. Conventional wisdom holds that the link between this advertisement and a woman's right to an abortion explains the Court's ruling. But the conventional wisdom falls short. At stake here was nothing less than the First Amendment ideal embodied in classified communication. This same ideal lies buried in the jumble of the Court's commercial speech opinions and in the clutter of those who defend or criticize those opinions.