State v. Baird

• Decision Date: 20 November 1967
• Docket Number: No. A--25,A--25
• Citation: 235 A.2d 673,50 N.J. 376
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William R. BAIRD, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 376

50 N.J. 376

235 A.2d 673

STATE of New Jersey, Plaintiff-Respondent, v. William R. BAIRD, Defendant-Appellant.

No. A--25.

Supreme Court of New Jersey.

Argued Oct. 9, 1967.

Decided Nov. 20, 1967.

Robert I. Ansell, Asbury Park, for appellant (Anschelewitz, Barr & Ansell, Asbury Park, attorneys).

Thomas L. Yaccarino, Asst. County Prosecutor, for the respondent (Vincent P. Keuper, County Prosecutor of Monmouth County, attorney).

Nancy F. Wechsler, New York City, for Planned Parenthood Federation of America, Inc., amicus curiae (McCarter & English by Eugene M. Haring, Newark, attorneys, Greenbaum, Wolff & Ernst by Harriet F. Pilpel, and Robert K. Ciulla, New York City, of counsel and on the brief).

PER CURIAM:

The defendant William R. Baird telephoned the Chief of Police of the Borough of Freehold, told him that he wanted to test the constitutionality of N.J.S. 2A:170--76, N.J.S.A., and that he wanted to be arrested after he had made his planned demonstration. On September 10, 1966 he arrived in Freehold, parked his van in a parking lot, and when Mrs. Elizabeth Dean asked him for information on birth control, he led her to the van. There he had a display board of contraceptive devices and medicines and he began to explain them and their uses to Mrs. Dean. He was arrested and a complaint was filed against him charging that he had 'exposed to the view of others contraceptives used to prevent birth to wit: rubber prophylactics and diaphrams contrary to the provisions of N.J.S. 2A:170--76 (N.J.S.A.).' He was convicted and fined $100 in the magistrate's court and his conviction was sustained in the county court. His appeal to the Appellate Division was certified by us before argument there.

Preliminarily, we wish to voice our distaste for the unseemly procedural course chosen by the defendant Baird. He could easily have brought a proceeding under the Uniform Declaratory Judgments Act (N.J.S. 2A:16--50 et seq., N.J.S.A.) under which an appropriate declaration could have been obtained without any criminal action whatever. See Lucky Calendar Co. v. Cohen, 19 N.J. 399, 117 A.2d 487 (1955); Sanitary Vendors, Inc. v. Byrne, 40 N.J. 157, 190 A.2d 876, 96 A.L.R.2d 948 (1963); cf. Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958); Note, Declaratory Relief in The Criminal Law, 80 Harv.L.Rev. 1490 (1967). In the Lucky Calendar case an advertising company sought and obtained a declaration as to the legality of its proposed sales promotional program; in his opinion for the Court, Chief Justice Vanderbilt stressed the patent advantages of declaratory testing proceedings over proceedings under the criminal law. 19 N.J. at p. 409, 117 A.2d 487. In the Sanitary Vendors case, a company engaged in the automatic vending machine business brought a declaratory judgment proceeding which resulted in a judicial declaration that its proposed mode of selling contraceptives would be unlawful under N.J.S. 2A:170--76, N.J.S.A. See Annot., 96 A.L.R.2d 955, 965--967 (1964).

Coming to the merits, we are entirely satisfied that the defendant Baird's conduct was not unlawful and that his conviction must be set aside. There is nothing at all in the statutes of New Jersey which seeks to prohibit the use of contraceptives or seeks flatly to outlaw their display or exposure. N.J.S. 2A:170--76, N.J.S.A. simply provides that their display or exposure shall be unlawful if 'without just cause.' The statute had its origins in antiobscenity legislation (40 N.J. at p. 160, 190 A.2d 876) and in Sanitary Vendors it was applied as a regulatory measure so as to strike down the promiscuous and indiscriminate sale of contraceptives through vending machines as patently offensive to the community. See 40 N.J. at pp. 165--166, 190 A.2d 876. If the defendant Baird had engaged in the promiscuous and indiscriminate display or exposure of contraceptives at a street corner or at a children's playground, his conduct would fairly be deemed to have been without just cause under N.J.S. 2A:170--76, N.J.S.A. as applied in Sanitary Vendors. But here there was no conduct suggestive of obscenity (A Book v. Attorney General, 383 U.S. 413, 418--421, 86 S.Ct. 975, 16 L.Ed.2d 1, 5--7 (1966)) or suggestive of obtrusiveness, pandering and the like (Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, 517 (1967)); 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. Cf. Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

In Griswold the Supreme Court struck down Connecticut's efforts to convict the Planned Parenthood League and its Medical Director for having distributed certain birth control information. In the course of the Court's opinion, Justice Douglas noted that the State may not, consistently with the spirit of the First Amendment, 'contract the spectrum of available knowledge' and that the freedoms of speech and press include not only the right to utter and print, but also the 'right to distribute, the right to receive, the right to read'. 381 U.S. at p. 482, 85 S.Ct. at p. 1680, 14 L.Ed.2d at p. 514. While these rights are not so absolute as to preclude restrictions properly aimed at obscenity, obtrusiveness and the like (Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951)), they clearly furnish measures of protection for conduct such as that engaged in here by the defendant Baird. He had the right to disseminate the birth control information and Mrs. Dean had the right of access to it; 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. Surely, in the light of the important rights thus being exercised, the display and exposure must be taken to have been made with just cause; since this limited determination requires complete reversal of the conviction and dismissal of the proceedings we shall, in line with traditional principles, not pass on any of the other constitutional and legal issues presented in the briefs of the parties and the Amicus curiae. See Ahto v. Weaver, 39 N.J. 418, 428, 189 A.2d 27 (1963); State v. Salerno, 27 N.J. 289, 296, 142 A.2d 636 (1958); State v. Fair Lawn Service Center, Inc., 20 N.J. 468, 470, 120 A.2d 233 (1956).

Reversed.

Page 386

For reversal: Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, GOLDMANN, SCHETTINO and HANEMAN--7.

For affirmance: None.

WEINTRAUB, C.J. (concurring in result).

I agree the conviction should be reversed but for the reason that the statute is invalid.

The subject is contraception and the statute, N.J.S.A. 2A:170--76, reads:

'Any person who, Without just cause, utters or exposes to the view of another, or possesses with intent to utter or expose to the view of another, or to sell the same, any instrument, medicine or other thing, designed or purporting to be designed for the prevention of conception or the procuring of abortion, or who in any way advertises or aids in advertising the same, or in any manner, whether by recommendation for or against its use or otherwise, gives or causes to be given, or aids in giving any information how or where any such instrument, medicine or other thing may be had, seen, bought or sold, is a disorderly person.'

I have emphasized the phrase 'without just cause.' Without that phrase, the legislative intent would be clear; with it, the legislative purpose is, to me, unknowable. The phrase drains the statute of any discernible legislative decision with respect to contraception.

The history of the statute is of no help. We may start with L.1868, p. 1160 and L.1869,[235 A.2d 676] p. 1115. The 1868 statute dealt with the sale or exposure for sale of obscene publications while in 1869 act dealt with the same subject but also with any 'instrument or article of indecent or immoral use, or article or medicine, for the prevention of conception or procuring of abortion' and with any advertisement concerning such things. In 1873, shortly after the adoption by the Congress of the Comstock Act, 17 Stat. 598, 18 U.S.C.A. §§ 1461, 1462, our Legislature adopted still another statute (p. 77) which dealt with the same subject--traffic in obscene publications and articles for use in contraception or in abortion. The 1868 and 1869 statutes contained no exceptions, while our 1873 act provided in section 5 that the act shall not be 'so construed as to render it unlawful for a physician * * * to keep on hand and to prescribe any medicine he may judge to be useful and proper.'

It was in the revision of 1877 that the phrase 'without just cause' first appeared, and then only in section 44 (p. 234) which consolidated the 1868 and 1869 statutes. The 1873 statute was reproduced in sections 45--49 of the revision (pp. 235--236), and it remained unqualified by 'without just cause' or any like phrase. The 1873 statute was dropped in the revision of 1898, while the 1868 and 1869 statutes, as combined in the revision of 1877, were continued in the 1898 revision as section 53 (L.1898, p. 808). Section 53 was later divided in the revision of 1937, so much as dealt with obscene publications becoming what is now N.J.S.A. 2A:15--2 and the remainder becoming the section involved in the present case.

Thus we know only that for reasons nowhere revealed the Legislature in the revision of 1877 introduced the phrase 'without out just cause' in the 1868 and 1869 statutes. Needless to say, there is no common law treatment of obscenity or contraception to which the Legislature could have referred. In Sanitary Vendors, Inc. v. Byrne, 40 N.J. 157, 165, 190 A.2d 876, 880, 96 A.L.R.2d 948 (1963), our Court said that when the Legislature adopted N.J.S.A....