Com. v. Baird

• Decision Date: 01 May 1969
• Citation: 247 N.E.2d 574,355 Mass. 746
• Parties: COMMONWEALTH v. William R. BAIRD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 574

247 N.E.2d 574

355 Mass. 746

COMMONWEALTH v. William R. BAIRD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 2, 1968.

Decided May 1, 1969.

Joseph J. Balliro, Boston, for defendant.

Joseph R. Nolan, Asst. Dist. Atty., for the Commonwealth.

Roger P. Stokey, Henry Herrmann, Boston, Robert S. Bowditch, Jr., Cambridge, for Planned Parenthood League of Massachusetts, amicus curiae, submitted a brief.

Robert B. Kent, Boston, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

David S. Fitzpatrick and Alexander B. Grannis, New York City, for The National Emergency Civil Liberties Committee, amicus curiae, submitted a brief.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

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, 85 S.Ct. 1978, 14 L.Ed.2d 510, 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, 15 N.E.2d 222 (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, 15 N.E.2d p. 223). 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, 85 S.Ct. 476, 13 L.Ed.2d 487. See Commonwealth v. Dubin, 327 Mass. 681, 100 N.E.2d 843. Compare United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672. 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, 77 S.Ct. 1304, 1 L.Ed.2d 1498. 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, 116 N.E. 265 (1971), 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, 16 N.E. p. 265) as 'too indecent to be spread upon the records.' In that case it was stated (p. 62, 116 N.E. p. 266), 'The distribution of obscene printing was indictable at common law'; and (pp. 61--62, 116 N.E. p. 266); '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, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, 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 Roth test was accepted as binding by this court. See Commonwealth v. Moniz, 338 Mass. 442, 443, 155 N.E.2d 762; Attorney Gen. v. 'Tropic of Cancer,' 345 Mass. 11, 13--20, 184 N.E.2d 328; Attorney Gen. v. 'John Cleland's Memoirs of a Woman of Pleasure,' 349 Mass. 69, 70--72, 206 N.E.2d 403, revd. sub nom. 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney Gen. of Mass., 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1.

In 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney Gen. of Mass., 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, 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, 77 S.Ct. at 1311. 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 representatiion 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, 218 N.E.2d 571.

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, 77 S.Ct. at 1308, 'All ideas having even the slightest redeeming social importance[355 Mass. 751] --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, 155 N.E.2d 762; Attorney Gen. v. 'Tropic of Cancer,'supra, 14, 184 N.E.2d 328.

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, 39 S.Ct. 247, 249, 63 L.Ed. 470, or where 'there * * * (is) reasonable ground to * * * (believe) that serious evil will result,' to use the language of Mr. Justice Brandeis in his concurring ...