Commonwealth v. Baird

247 N.E.2d 574, 355 Mass. 746, 1969 Mass. LEXIS 870

• Court: Massachusetts Supreme Judicial Court
• Decided: May 1, 1969
• Status: Published

Opinions

Wilkins, C.J.

These are two indictments charging violations of G. L. c. 272, § 21, one (No. 29,688) for unlawfully giving away a certain medicine and article for the prevention of conception, the other (No. 29,689) for unlawfully exhibiting certain articles for the prevention of conception, both being not in accordance with G. L. c. 272, § 21A. The evidence shows that these acts occurred during, and incidental to, a lecture to students in an auditorium of an educational institution. The case, along with two motions to dismiss based on constitutional grounds, was heard by a judge of the Superior Court sitting without jury.

The defendant, pursuant to invitation, addressed a group of approximately 2,000 students in Hayden Auditorium at Boston University on April 6, 1967. The address was approximately one hour in length and consisted of a discussion of various contraceptive devices displayed with diagrams on two demonstration boards or contained in a cardboard box and with an exposition of their respective merits. During the address he stated that he was violating the statute and invited arrest. At the close the defendant invited the members of the audience to come to the stage and to help themselves to the contraceptive articles. The defendant personally handed to a young lady a package of Emko vaginal foam, an admittedly contraceptive substance. At this point a police officer told the defendant to call his attorney to the stage and to “wind it up.” The defendant was then taken to police headquarters in company with his attorney, who remained with him.

Following arguments, the judge made a finding of guilty, and denied the motions to dismiss. Being of the opinion that the defendant’s motions raise questions of law which are both doubtful and important and require decision by the Supreme Judicial Court, he reported the case in accordance with G. L. c. 278, § 30, both parties assenting thereto. The report incorporates by reference the stenographic record and the exhibits, and contains all the material facts necessary for a review of the following question of law: Are the provisions of G. L. c. 272, § 21, constitutional?

The material part of G. L. c. 272, § 21, as amended through St. 1966, c. 265, § 3, is: “Except as provided in section twenty-one A, whoever sells, lends, gives away, exhibits, or offers to sell, lend or give away . . . any drug, medicine, instrument or article whatever for the prevention of conception or for causing unlawful abortion . . . shall be punished by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years or by a fine of not less than one hundred nor more than one thousand dollars.”

The exception in § 21 referring to § 21A was inserted by St. 1966, c. 265, § 3. Section 21A was set forth in c. 265, § 1, which reads in part: “A registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. A registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician. A public health agency, a registered nurse, or a maternity health clinic operated by or in an accredited hospital may furnish information to any married person as to where professional advice regarding such drugs or articles may be lawfully obtained.”

The amendments made by St. 1966, c. 265, were brought about by the decision in Griswold v. Connecticut, 381 U. S. 479, which held unconstitutional as applied to married persons a statute prohibiting the use of contraceptives and the giving of advice on the subject.

The Griswold case and the ensuing statutory amendments swept away the ground of decision in Commonwealth v. Gardner, 300 Mass. 372 (1938), which upheld convictions of individuals who were charged with selling or giving contraceptives to married women even if “intended to be used for the prevention of conception only upon prescription by a duly qualified physician when necessary for the preservation of life or health according to sound and generally accepted medical practice” (p. 374). They did not, however, repeal the prohibition against laymen furnishing information or providing contraceptives, and they did not enlarge the group who might be so informed or thus provided. Unmarried individuals are still excluded.

There is nothing in § 21 purporting to prohibit giving advice, discussing, or lecturing on the subject of contraceptives. The two indictments, both limited to § 21, understandably do not call into question anything that the defendant said, but charge that he unlawfully gave away “a certain medicine and article,” and unlawfully exhibited “certain articles for the prevention of conception.” The defendant contends that his acts must be classified as speech, and are within the protection of the First Amendment. Cox v. Louisiana, 379 U. S. 559, 563. See Commonwealth v. Dubin, 327 Mass. 681. Compare United States v. O’Brien, 391 U. S. 367, 376. But merely because his acts are so classified does not assure constitutional protection.

An aspect of speech which does not receive constitutional protection is obscenity. Roth v. United States, 354 U. S. 476, 484-485. In some earlier decisions in this Commonwealth dealing with contraception it can be inferred that obscenity was a basis. See, for example, Commonwealth v. Allison, 227 Mass. 57 (1917), a prosecution under a predecessor statute of G. L. c. 272, § 21, for the advertising, publication, and distribution of birth control pamphlets, which were described (p. 60) as “too indecent to be spread upon the records.” In that case it was stated (p. 62), “The distribution of obscene printing was indictable at common law”; and (pp. 61-62): “One test of obscenity has been said to be whether its tendency is ‘to deprave and corrupt those whose minds are open to such immoral influences.’ The Queen v. Hicklin, L. R. 3 Q. B. 360, 371.”

In Roth v. United States, 354 U. S. 476, 489, the opinion of the court stated, “The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.” The Both test was accepted as binding by this court. See Commonwealth v. Moniz, 338 Mass. 442, 443; Attorney Gen. v. “Tropic of Cancer,” 345 Mass. 11, 13-20; Attorney Gen. v. “John Cleland’s Memoirs of a Woman of Pleasure,” 349 Mass. 69, 70-72, revd. sub nom. “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Mass. 383 U. S. 413.

In “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Mass. 383 U. S. 413, 418, the majority opinion contained the following: “We defined obscenity in Roth in the following terms: ‘[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ 354 U. S., at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” The Memoirs case was treated as controlling in Attorney Gen. v. “Naked Lunch,” 351 Mass. 298, 299.

Tested by these standards, it cannot rightly be contended that the defendant’s address was obscene in the constitutional sense. As was said in the Roth case, 354 U. S. at 484, “All ideas having even the slightest redeeming social impor-tan.ce — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.” See Commonwealth v. Moniz, supra, 446; Attorney Gen. v. “Tropic of Cancer, supra, 14”.

There is another type of speech which does not have constitutional protection because it may “encroach upon the limited area of more important interests.” This might apply if it is deemed “to create a clear and present danger” of substantive evil, to quote from Mr. Justice Holmes in Schenck v. United States, 249 U. S. 47, 52, or where “there. . . . [is] reasonable ground to . . . [believe] that serious evil will result,” to use the language of Mr. Justice Brandéis in his concurring opinion in Whitney v. California, 274 U. S. 357, 376. This is a subject fraught with difficulty for a State court, as the Justices have indicated in the past. See Opinion of the Justices, 349 Mass. 786, 791-793.

But where recent pronouncements of the Supreme Court of the United States seem to declare that the legislation may constitute an unwarranted interference with freedom of speech, it becomes our duty to ascertain, and apply, the meaning of those cases by which we are bound. This is the course we have endeavored to follow in the past. See Commonwealth v. Pascone, 308 Mass. 591, 594; Commonwealth v. Gilfedder, 321 Mass. 335, 339, 342; Commonwealth v. Dubin, 327 Mass. 681, 682-683.

In the Griswold case, 381 U. S. 479, the court’s opinion stated (p. 482): “. . . [T]he State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or print, but the right to distribute, the right to receive, the right to read . . . and freedom of inquiry, freedom of thought, and freedom to teach . . ..” The reference to freedom of speech in the Griswold case was a basis of the decision of the Supreme Court of New Jersey in State v. Baird, 50 N. J. 376, 380, which reversed the conviction of the one who is the defendant in the case at bar. He was there charged with having “exposed to the view of others contraceptives used to prevent birth.” This had occurred in a van on a parking lot. The court noted that the New Jersey statute merely forbade display or exposure if “without just cause,” and said that there was no conduct suggestive of obscenity or of obtrusiveness, pandering and the like; and that “the display or exposure was made in inoffensive circumstances and was incidental to the good faith explanation of birth control to a woman who had made specific inquiry on the subject” (p. -379). The court also emphasized that the enumeration of rights quoted from the Griswold case furnished protection for the defendant's conduct; saying (p. 380), “the display and exposure of the contraceptive devices were part and parcel of the dissemination and merely served to illustrate and clarify the information being properly given and received.”

As has been noted, the defendant was not indicted for anything he said. We have to consider whether the exhibition of contraceptive devices, for which he was indicted, was incidental to, and part of, the lecture, and thereby within the protection of the First Amendment. The display of those articles was essential to a graphic representation of his subject.

We are of opinion that delivery of the lecture was an exercise of a right of free speech which has First Amendment protection. To the extent that § 21 prohibits exhibiting, it is unconstitutional as applied to the defendant in this case.

The indictment which charges giving away an article “for the prevention of conception” stands on a different footing.¹ There do not appear to be decisions binding upon us which show that the charge would be held to be constitutionally invalid. Since St. 1879, c. 159, § 1, the public policy of this Commonwealth, as legislatively declared, has included a prohibition against distribution of articles for the prevention of conception. Not until the recent amendment by St. 1966, c. 265, § 3, was any exception made in favor of doctors and others who by training or occupation might be deemed to have acquired a special qualification as distributors. The Commonwealth has a legitimate interest in preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences. In these circumstances, absent any definite intimation, we shall not guess as to the probable attitude of the Supreme Court of the United States.

Therefore, we do not declare that a statute preventing distribution by indiscriminate persons is beyond legislative power. Unlike the legislation in Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 424-426, the prohibition in § 21, as applied to the defendant in this case, is directly related to a legitimate legislative purpose. The legitimacy of the purpose depends upon a distinction as to the distributor and not as to the marital status of the recipient.

The bestowal of this item upon an individual in the audience added nothing to the understanding of the lecture, and was not an exercise of a right guaranteed under the First Amendment. We do not accept the argument advanced in a brief of an amicus curiae that the gift of the foam was one of the “appropriate types of action” embraced within the guaranty of freedom of speech as stated in Brown v. Louisiana, 383 U. S. 131, 142. See United States v. O’Brien, 391 U. S. 367, 376. If, as there also contended, it is “implementing conduct ... in the nature of advocacy,” a phrase quoted to us from National Labor Relations Bd. v. International Longshoremen’s Assn. 332 F. 2d 992, 999 (4th Cir.), we shall leave such declaration to be made elsewhere.

Even accepting the statute as constitutional in prohibiting distribution, there still must be considered whether there has been a violation in this respect. It is argued that the act of giving away the device should have been, but was not, accompanied by an intention that the article be used for the prevention of conception. See Commonwealth v. Corbett, 307 Mass. 7 (1940), which construed G. L. c. 272, § 21, and states (12n.), “As has been shown, the words of the statute require proof of intended use for an illegal purpose, and are not satisfied by mere incidental result.” The contention is developed that on the evidence the distributor’s intent could have been any of a variety of reasons, including inviting arrest in order to test the validity of the statute. But the judge made no findings on this point, and we are not able to do so. There is also nothing to show that unlawful use was intended by the recipient. See the Corbett case, supra, 10.

In the case last cited, the article, according to the opinion of the majority, had ambiguous purposes. Had it been advertised as for the prevention of conception, the defendant could have been convicted. Commonwealth v. Goldberg, 316 Mass. 563. In the case at bar, the foam, as found by the judge, was admittedly a contraceptive, and the plea in behalf of contraceptives presented in the defendant’s address has an effect analogous to the advertising in the Goldberg case. There was enough to warrant a finding of guilty on the indictment for giving away.

The defendant also invokes the Eighth Amendment arguing that the imposition of the maximum permitted penalty of five years for a violation of § 21 would be cruel and unusual punishment. He stresses that the penalty prescribed is as severe, or more so, as any to be found in statutes creating other offences which are serious crimes. We quote examples which carry a sentence of five years: Misprision of treason. G. L. c. 264, § 3. Indecent assault and battery on child under fourteen. G. L. c. 265, § 13B. Burning of insured property with intent to defraud. G. L. c. 266, § 10. Unnatural and lascivious acts with child under sixteen. G. L. c. 272, § 35A. .The maximum sentence for adultery is three years and that for fornication is three months.

The maximum sentence is extremely severe, particularly when compared with the sentences provided in birth control legislation of twenty-three States cited in the defendant’s brief, and with sentences for other crimes in this Commonwealth.

Since the defendant has not been sentenced, we decline further to discuss this question at this time. See Commonwealth v. Leis, ante, 189, 198-199.

The defendant contends that the prohibition against giving away is not separable from the other provisions of § 21 relating to violations of the First Amendment. The only word which is affected by this opinion is “exhibits” as it applies to the defendant in giving the lecture. It may be constitutional in its application to others. This does not render it doubtful whether the Legislature would enact the balance of the statute, as in Pedlosky v. Massachusetts Inst. of Technology, 352 Mass. 127. In contemplation of the history of the statute, both remote and recent, we do not believe that the Legislature would prefer to have the entire statute fall if under the First Amendment the word “exhibits” cannot stand, nor do we believe that in that circumstance they would prefer to treat as innocuous the other acts set forth in § 21:— selling or lending or giving away or offering to sell, lend or give away any of the prohibited articles.

The current dispute could have been more appropriately considered under proceedings for a declaratory decree. G. L. c. 231A. See Mansfield Beauty Academy, Inc. v. Board of Registration of Hairdressers, 326 Mass. 624. The choice of openly challenging the criminal law was unnecessary if the purpose was merely to test the statute and not for some other purpose, such as compelling public attention. See State v. Baird, 50 N. J. 376, 378-379.

From the fact that we rest this decision wholly upon the Federal Constitution and largely upon its construction by the Supreme Court of the United States, no inference should be drawn that the Declaration of Rights of the Constitution of the Commonwealth is less capable of protecting the essentials of freedom of speech, of the press, and of assembly than is the Federal Constitution. Commonwealth v. Gil-fedder, 321 Mass. 335, 343.

In answer to the question we state: G. L. c. 272, § 21, is unconstitutional as applied to the defendant in case No. 29,689, for unlawfully exhibiting certain articles for the prevention of conception, but § 21 is constitutional as applied to the defendant in case No. 29,688, for unlawfully giving away a certain medicine and article for the prevention of conception.

So ordered.

1 In Griswold v. Connecticut, 381 U. S. 479, see dissenting opinion of Stewart, J. at p. 529, fn. 3: “If all the appellants had done was to advise people that they thought the use of contraceptives was desirable, or even to counsel their use, the appellants would, of course, have a substantial First Amendment claim. But their activities went far beyond mere advocacy. They prescribed specific contraceptive devices and furnished patients with the prescribed contraceptive materials.”