Eisenstadt v. Baird, 1972

Eisenstadt v. Baird, 1972

This Supreme Court case overturned a Massachusetts law that forbade unmarried people from accessing contraceptive devices and medicines. The ruling extended the right to privacy from Griswold v. Connecticut (1965), expanding it to unmarried persons.

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Library of Congress

1972

Cecily Lawton

APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 70-17. Argued November 17-18, 1971-Decided March 22, 1972
Appellee attacks his conviction of violating Massachusetts law for
giving a woman a contraceptive foam at the close of his lecture
to students on contraception. That law makes it a felony for
anyone to give away a drug, medicine, instrument, or article for
the prevention of conception except in the case of (1) a registered
physician administering or prescribing it for a married person
or (2) an active registered pharmacist furnishing it to a married
person presenting a registered physician's prescription. The District Court dismissed appellee's petition for a writ of habeas
corpus. The Court of Appeals vacated the dismissal, holding
that the statute is a prohibition on contraception per se and
conflicts "with fundamental human rights" under Griswold v.
Connecticut, 381 U. S. 479. Appellant, inter alia, argues that
appellee lacks standing to assert the rights of unmarried persons
denied access to contraceptives because he was neither an authorized distributor under the statute nor a single person unable to
obtain contraceptives. Held:
1. If, as the Court of Appeals held, the statute under which appellee was convicted is not a health measure, appellee may not
be prevented, because he was not an authorized distributor, from
attacking the statute in its alleged discriminatory application to
potential distributees. Appellee, furthermore, has standing to
assert the rights of unmarried persons denied access to contraceptives because their ability to obtain them will be materially impaired by enforcement of the- statute. Cf. Griswold, supra;
Barrows v. Jackson, 346 U. S. 249. Pp. 443-446.
2. By providing dissimilar treatment for married and unmarried persons who are similarly situated, the statute violates the
Equal Protection Clause of the Fourteenth Amendment. Pp.
446-455.
(a) The deterrence of fornication, a 90-day misdemeanor
under Massachusetts law, cannot reasonably be regarded as the
purpose of the statute, since the statute is riddled with exceptions
making contraceptives freely available for use in premarital sexual relations and its scope and penalty structure are inconsistent
with that purpose. Pp. 447-450.
(b) Similarly, the protection of public health through the
regulation of the distribution of potentially harmful articles cannot reasonably be regarded as the purpose of the law, since, if
health were the rationale, the statute would be both discriminatory and overbroad, and federal and state laws already regulate
the distribution of drugs unsafe for use except under the supervision of a licensed physician. Pp. 450-452.
(c) Nor can the statute be sustained simply as a prohibition
on contraception per se, for whatever the rights of the individual
to access to contraceptives may be, the rights must be the same
for the unmarried and the married alike. If under Griswold,
supra, the distribution of contraceptives to married persons cannot
be prohibited, a ban on distribution to unmarried persons would
be equally impermissible, since the constitutionally protected right
of privacy inheres in the individual, not the marital couple. If,
on the other hand, Griswold is no bar to a prohibition on the
distribution of contraceptives, a prohibition limited to unmarried
persons would be underinclusive and invidiously discriminatory.
Pp. 452-455.
429 F. 2d 1398, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, and MARSHALL, JJ., joined. DOUGLAS, J.,
filed a concurring opinion, post, p. 455. WHITE, J., filed an opinion
concurring in the result, in which BLACKMUN, J., joined, post, p. 460.
BURGER, C. J., filed a dissenting opinion, post, p. 465. POWELL and
REHNQUIST, JJ., took no part in the consideration or decision of the
case.
Joseph R. Nolan, Special Assistant Attorney General
-of Massachusetts, argued the cause for appellant. With
him on the brief were Robert H. Quinn, Attorney General, John J. Irwin, Jr., and Ruth I. Abrams, Assistant
Attorneys General, and Garrett H. Byrne.
Joseph D. Tydings argued the cause for appellee.
With him on the briefs was Joseph J. Balliro.
Briefs of amici curiae urging affirmance were filed
by Harriet F. Pilpel and Nancy F. Wechsler for the Planned Parenthood Federation of America, Inc.; by
Roger P. Stokey for the Planned Parenthood League
of Massachusetts; by Melvin L. Wulf for the American
Civil Liberties Union et al.; and by Sylvia S. Ellison
for Human Rights for Women, Inc.
MR. JUsTIcE BRENNAN delivered the opinion of the
Court.
Appellee William Baird was convicted at a bench trial
in the Massachusetts Superior Court under Massachusetts
General Laws Ann., c. 272, § 21, first, for exhibiting contraceptive articles in the course of delivering a lecture on
contraception to a group of students at Boston University
and, second, for giving a young woman a package of
Emko vaginal foam at the close of his address.1 The
Massachusetts Supreme Judicial Court unanimously set
aside the conviction for exhibiting contraceptives on the
ground that it violated Baird's First Amendment rights,
but by a four-to-three vote sustained the conviction for
giving away the foam. Commonwealth v. Baird, 355
Mass. 746, 247 N. E. 2d 574 (1969). Baird subsequently
filed a petition for a federal writ of habeas corpus, which
the District Court dismissed. 310 F. Supp. 951 (1970).
On appeal, however, the Court of Appeals for the First
Circuit vacated the dismissal and remanded the action
with directions to grant the writ discharging Baird. 429
F. 2d 1398 (1970). This appeal by the Sheriff of Suffolk County, Massachusetts, followed, and we noted
probable jurisdiction. 401 U. S. 934 (1971). We affirm.
Massachusetts General Laws Ann., c. 272, § 21, under
which Baird was convicted, provides a maximum five-year
term of imprisonment for "whoever ... gives away...
any drug, medicine, instrument or article whatever for the prevention of conception," except as authorized in § 21A. Under § 21A, '![a] registered physician
may administer to or prescribe for any married person drugs or articles intended for the prevention of
pregnancy or conception. [And 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."' 2 As interpreted by the State Supreme Judicial Court, these provisions make it a felony for anyone,
other than a registered physician or pharmacist acting in
accordance with the terms of § 21A, to dispense any article with the intention that it be used for the prevention
of conception. The statutory scheme distinguishes
among three distinct classes of distributees-first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription;
second, single persons may not obtain contraceptives
from anyone to prevent pregnancy; and, third, married
or single persons may obtain contraceptives from anyone
to prevent, not pregnancy, but the spread of disease.
This construction of state law is, of course, binding on us.
E. g., Groppi v. Wisconsin, 400 U. S. 505, 507 (1971).
The legislative purposes that the statute is meant to
serve are not altogether' clear. In Commonwealth v.
Baird, supra, the Supreme Judicial Court noted only the
State's interest in protecting the health of its citizens:
"[T]he prohibition in § 21," the court declared, "is
directly related to" the State's goal of "preventing the
distribution of articles designed to prevent conception
which may have undesirable, if not dangerous, physical
consequences." 355 Mass., at 753, 247 N. E. 2d, at 578.
In a subsequent decision, Sturgis v. Attorney General, 358
Mass. 37, -, 260 N. E. 2d 687, 690 (1970), the court,
however, found "a second and more compelling ground
for upholding the statute"-namely, to protect morals
through "regulating the private sexual lives of single
persons." ' The Court of Appeals, for reasons that will appear, did not consider the promotion of health or the
protection of morals through the deterrence of fornication
to be the legislative aim. Instead, the court concluded
that the statutory goal was to limit contraception in
and of itself-a purpose that the court held conflicted
"with fundamental human rights" under Griswold v.
Connecticut, 381 U. S. 479 (1965), where this Court
struck down Connecticut's prohibition against the use
of contraceptives as an unconstitutional infringement
of the right of marital privacy. 429 F. 2d, at 1401-1402.
We agree that the goals of deterring premarital sex
and regulating the distribution of potentially harmful
articles cannot reasonably be regarded as legislative aims
of §§ 21 and 21A. And we hold that the statute, viewed
as a prohibition on contraception per se, violates the
rights of single persons under the Equal Protection
Clause of the Fourteenth Au-endi aent
We address at the outset appellant's contention that
Baird does not have standing to assert the rights of unmarried persons denied access to contraceptives because
he was neither an authorized distributor under § 21A nor
a single person unable to obtain contraceptives. There
can be no question, of course, that Baird has sufficient
interest in challenging the statute's validity to satisfy the
"case or controversy" requirement of Article III of the
Constitution.+ Appellant's argument, however, is that this case is governed by the Court's self-imposed rules of
restraint, first, that "one to whom application of a statute
is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its
application might be unconstitutional," United States v.
Raines, 362 U. S. 17, 21 (1960), and, second, the "closely
related corollary that a litigant may only assert his own
constitutional rights or immunities," id., at 22. Here,
appellant contends that Baird's conviction rests on the
restriction in § 21A on permissible distributors and that
that restriction serves a valid health interest independent
of the limitation on authorized distributees. Appellant
urges, therefore, that Baird's action in giving away the
foa-i fell squarely within the conduct that the legislature
meant and had power to prohibit and that Baird should
not be allowed to attack the statute in its application to
potential recipients. In any event, appellant concludes,
since Baird was not himself a single person denied access
to contraceptives, he should not be heard to assert their
rights. We cannot agree.
The Court of Appeals held that the statute under
which Baird was convicted is not a health measure. If
that view is correct, we do not see how Baird may be
prevented, because he was neither a doctor not a druggist,
from attacking the statute in its alleged discriminatory
application to potential distributees. We think, too, that
our self-imposed rule against the assertion of third-party
rights must be relaxed'in this case just as in Griswold v.
Connecticut, supra. There the Executive Director of the
Planned Parenthood League of Connecticut and a licensed physician who had prescribed contraceptives for
married persons and been convicted as accessories to
the crime of using contraceptives were held to have
standing to raise the constitutional rights of the patients with whom they had a professional relationship. Appellant here argues that the absence of a professional
or aiding-and-abetting relationship distinguishes this case
from Griswold. Yet, as the Court's discussion of prior
authority in Griswold, 381 U. S., at 481, indicates, the
doctor-patient and accessory-principal relationships are
not the only circumstances in which one person has been
found to have standing to assert the rights of another.
Indeed, in Barrows v. Jackson, 346 U. S. 249 (1953), a
seller of land was entitled to defend against an action
for damages for breach of a racially restrictive covenant on the ground that enforcement of the covenant violated the equal protection rights of prospective
non-Caucasian purchasers. The relationship, there between the defendant and those whose rights he sought to
assert was not simply the fortuitous connection between
a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority
and the minority itself. Sedler, Standing to Assert
Constitutional Jus Tertii in the Supreme Court, 71
Yale L. J. 599, 631 (1962). And so here the relationship
between Baird and those whose rights he seeks to assert
is not simply that between a distributor and potential
distributees, but that between an advocate of the rights
of persons to obtain contraceptives and those desirous
of doing so. The very point of Baird's giving away the
vaginal foam was to challenge the Massachusetts statute
that limited access to contraceptives.
In any event, more important than the nature of the
relationship between the litigant and those whose rights
he seeks to assert is the impact of the litigation on the
third-party interests.5 In Griswold, 381 U. S., at 481, the Court stated: "The rights of husband and wife, pressed
here, are likely to be diluted or adversely affected unless
those rights are considered in a suit involving those who
have this kind of confidential relation to them." A similar situation obtains here. Enforcement of the Massachusetts statute will materially impair the ability of
single persons to obtain contraceptives. In fact, the
case for according standing to assert third-party rights
is stronger in this regard here than in Griswold because
unmarried persons denied access to contraceptives in
Massachusetts, unlike the users of contraceptives in Conriecticut, are not themselves subject to prosecution and,
to that extent, are denied a forum in which to assert their
own rights. Cf. NAACP v. Alabama, 357 U. S. 449
(1958); Barrows v. Jackson, supra.6 The Massachusetts
statute, unlike the Connecticut law considered in Griswold, prohibits, not use, but distribution.
For the foregoing reasons we hold that Baird, who is
now in a position, and plainly has an adequate incentive,
to assert the rights of unmarried persons denied access to
contraceptives, has standing to do so. We turn to the
merits.
II
The basic principles governing application of the Equal
Protection Clause of the Fourteenth Amendment are
familiar. As THE CHIEF JUSTICE only recently explained
in Reed v. Reed, 404 U. S. 71, 75-76 (1971):
"In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different
classes of persons in different ways. Barbier v.
Connolly, 113 U. S. 27 (1885); Lindsley v. Natural
Carbonic Gas Co., 220 U. S. 61 (1911); Railway
Express Agency v. New York, 336 U. S. 106
(1949); McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969). The Equal Protection
Clause of that amendment does, however, deny to
States the power to legislate that different treatment
be accorded to persons placed by a statute into
different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification 'must be reasonable, not arbitrary, and must
rest upon some ground of difference having a fair
and substantial relation to the object of the legislation, so that all persons similarly circumstanced
shall be treated alike.' Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920)."
The question for our determination in this case is
whether there is some ground of difference that rationally
explains the different treatment accorded married and
unmarried persons under Massachusetts General Laws
Ann., c. 272, §§ 21 and 21A.7 For the reasons that
follow, we conclude that no such ground exists.
First. Section 21 stems from Mass. Stat. 1879, c. 159,
§ 1, which prohibited, without exception, distribution of
articles intended to be used as contraceptives. In Commonwealth v. Allison, 227 Mass. 57, 62, 116 N. E. 265, 266 (1917), the Massachusetts Supreme Judicial Court
explained that the law's "plain purpose is to protect
purity, to preserve chastity, to encourage continence and
self restraint, to defend the sanctity of the home, and
thus to engender in the State and nation a virile and
virtuous race of men and women." Although the State
clearly abandoned that purpose with the enactment of
§ 21A, at least insofar as the illicit sexual activities of
married persons are concerned, see n. 3, supra, the court
reiterated in Sturgis v. Attorney General, supra, that the
object of the legislation is to discourage premarital sexual
intercourse. Conceding that the State could, consistently
with the Equal Protection Clause, regard the problems
of extramarital and premarital sexual relations as
"[e]vils . . .of different dimensions and proportions,
requiring different remedies," Williamson v. Lee Optical
Co., 348 U. S. 483, 489 (1955), we cannot agree that
the deterrence of premarital sex may reasonably be regarded as the purpose of the Massachusetts law.
It would be plainly unreasonable to assume that
Massachusetts has prescribed pregnancy and the birth
of an unwanted child as punishment for fornication,
which is a misdemeanor under Massachusetts General
Laws Ann., c. 272, § 18. Aside from the scheme of values
that assumption would attribute to the State, it is abundantly clear that the effect of the ban on distribution of
contraceptives to unmarried persons has at best a marginal relation to the proffered objective. What Mr. Justice Goldberg said in Griswold v. Connecticut, supra, at
498 (concurring opinion), concerning the effect of Connecticut's prohibition on the use of contraceptives in discouraging extramarital sexual relations, is equally
applicable here. "The rationality of this justification is
dubious, particularly in light of the admitted widespread
availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention
of conception." See also id., at 505-507 (WHITE, J.,
concurring in judgment). Like Connecticut's laws,
§§ 21 and 21A do not at all regulate the distribution of
contraceptives when they are to be used to prevent, not
pregnancy, but the spread of disease. Commonwealth
v. Corbett, 307 Mass. 7, 29 N. E. 2d 151 (1940), cited
with approval in Commonwealth v. Baird, 355 Mass.,
at 754, 247 N. E. 2d, at 579. Nor, in making contraceptives available to married persons without regard to
their intended use, does Massachusetts attempt to deter
married persons from engaging in illicit sexual relations
Wvith unmarried persons. Even on the assumption that
the fear of pregnancy operates as a deterrent to fornication, the Massachusetts statute is thus so riddled with
exceptions that deterrence of premarital sex cannot
reasonably be regarded as its aim.
Moreover, §§ 21 and 21A on their face have a dubious
relation to the State's criminal prohibition on fornication.
As the Court of Appeals explained, "Fornication is a misdemeanor [in Massachusetts], entailing a thirty dollar
fine, or three months in jail. Massachusetts General
Laws Ann. c. 272 § 18. Violation of the present statute
is a felony, punishable by five years in prison. We find
it hard to believe that the legislature adopted a statute
carrying a five-year penalty for its possible, obviously by
no means fully effective, deterrence of the commission
of a ninety-day misdemeanor." 429 F. 2d, at 1401.
Even conceding the legislature a full measure of discretion in fashioning means to prevent fornication, and
recognizing that the State may seek to deter prohibited
conduct by punishing more severely those who facilitate
than those who actually engage in its commission, we,
like the Court of Appeals, cannot believe that in this
instance Massachusetts has chosen to expose the aider
and abetter who simply gives away a contraceptive to 20 times the 90-day sentence of the offender himself.
The very terms of the State's criminal statutes, coupled
with the de minimis effect of §§ 21 and 21A in deterring
fornication, thus compel the conclusion that such deterrence cannot reasonably be taken as the purpose of the
ban on distribution of contraceptives to unmarried
persons.
Second. Section 21A was added to the Massachusetts
General Laws by Stat. 1966, c. 265, § 1. The Supreme
Judicial Court in Commonwealth v. Baird, supra, held
that the purpose of the amendment was to serve the
health needs of the community by regulating the distribution of potentially harmful articles. It is plain that
Massachusetts had no such purpose in mind before the
enactment of § 21A. As the Court of Appeals remarked,
"Consistent with the fact that the statute was contained
in a chapter dealing with 'Crimes Against Chastity,
Morality, Decency and Good Order,' it was cast only in
terms of morals. A physician was forbidden to prescribe contraceptives even when needed for the protection of health. Commonwealth v. Gardner, 1938, 300
Mass. 372, 15 N. E. 2d 222." 429 F. 2d, at 1401. Nor
did the Court of Appeals "believe that the legislature [in
enacting § 21A] suddenly reversed its field and developed
an interest in health. Rather, it merely made what it
thought to be the precise accommodation necessary to
escape the Griswold ruling." Ibid.
Again, we must agree with the Court of Appeals. If
health were the rationale of § 21A, the statute would be
both discriminatory and overbroad. Dissenting in Commonwealth v. Baird, 355 Mass., at 758, 247 N. E. 2d,
at 581, Justices Whittemore and Cutter stated that they
saw "in § 21 and § 21A, read together, no public health
purpose. If there is need to have a physician prescribe
(and a pharmacist dispense) contraceptives, that need
is as great for unmarried persons as for married persons." The Court of Appeals added: "If the prohibition [on
distribution to unmarried persons] . . . is to be taken to
mean that the same physician who can prescribe for
married patients does not have sufficient skill to protect
the health of patients who lack a marriage certificate, or
who may be currently divorced, it is illogical to the point
of irrationality." 429 F. 2d, at 1401.8 Furthermore, we
must join the Court of Appeals in noting that not all
contraceptives are potentially dangerous.' As a result,
if the Massachusetts statute were a health measure, it
would not only invidiously discriminate against the unmarried, but also be overbroad with respect to the
married, a fact that the Supreme Judicial Court itself
seems to have conceded in Sturgis v. Attorney General,
358 Mass., at -, 260 N. E. 2d, at 690, where it noted
that "it may well be that certain contraceptive medication and devices constitute no hazard to health, in which
event it could be argued that the statute swept too broadly
in its prohibition." "In this posture," as the Court of Appeals concluded, "it is impossible to think of the
statute as intended as a health measure for the unmarried, and it is almost as difficult to think of it as so
intended even as to the married." 429 F. 2d, at 1401.
But if further proof that the Massachusetts statute is
not a health measure is necessary, the argument of
Justice Spiegel, who also dissented in Commonwealth v.
Baird, 355 Mass., at 759, 247 N. E. 2d, at 582, is conclusive: "It is at best a strained conception to say that the
Legislature intended to prevent the distribution of articles 'which may have undesirable, if not dangerous,
physical consequences.' If that was the Legislature's
goal, § 21 is not required" in view of the federal and
state laws already regulating the distribution of harmful
drugs. See Federal Food, Drug, and Cosmetic Act, § 503,
52 Stat. 1051, as amended, 21 U. S. C. § 353; Mass. Gen.
Laws Ann., c. 94, § 187A, as amended. We conclude, accordingly, that, despite the statute's superficial earmarks as a health measure, health, on the face of the
statute, may no more reasonably be regarded as its purpose than the deterrence of premarital sexual relations.
Third. If the Massachusetts statute cannot be upheld
as a deterrent to fornication or as a health measure, may
it, nevertheless, be sustained simply as a prohibition on
contraception? The Court of Appeals analysis "led inevitably to the conclusion that, so far as morals are concerned, it is contraceptives per se that are considered immoral-to the extent that Griswold will permit such a
declaration." 429 F. 2d, at 1401-1402. The Court of
Appeals went on to hold, id., at 1402:
"To say that contraceptives are immoral as such,
and are to be forbidden to unmarried persons who
will nevertheless persist in having intercourse, means
that such persons must risk for themselves an unwanted pregnancy, for the child, illegitimacy, and for society, a possible obligation of support. Such
a view of morality is not only the very mirror image
of sensible legislation; we consider that it conflicts
with fundamental human rights. In the absence
of demonstrated harm, we hold it is beyond the
competency of the .state."
We need not and do not, however, decide that important
question in this case because, whatever the rights of the
individual to access to contraceptives may be, the rights
must be the same for the unmarried and the married
alike.
If under Griswold the distribution of contraceptives
to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy
in question inhered in the marital relationship. -Yet the
marital couple is not an independent entity with a mind
and heart of its own, but an association of two individuals each with a separate intellectual and emotional
makeup. If the right of privacy means anything, it is
the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters
so fundamentally affecting a person as the decision
whether to bear or beget a child. See Stanley v. Georgia, 394 U. S. 557 (1969).1 ° See also Skinner v. Oklahoma, 316 U. S. 535 (1942); Jacobson v. Massachusetts,
197 U. S. 11, 29 (1905).
On the other hand, if Griswold is no bar to a prohibition on the distribution of contraceptives, the State
could not, consistently with the Equal Protection Clause,
outlaw distribution to unmarried but not to marrieu
persons. In each case the evil, as perceived by the State,
would be identical, and the underinclusion would be invidious. Mr. Justice Jackson, concurring in Railway
Express Agency v. New York, 336 U. S. 106, 112-113
(1949), made the point:
"The framers of the Constitution knew, and we
should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the
principles of law which officials would impose upon
a minority must be imposed generally. Conversely,
nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose
only a few to whom they will apply legislation and
thus to escape the political retribution that might
be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws
be equal in operation."
Although Mr. Justice Jackson's comments had reference
to administrative regulations, the principle he affirmed
has equal application to the legislation here. We hold
that by providing dissimilar treatment for married and
unmarried persons who are similarly situated, Massachusetts General Laws Ann., c. 272, §§ 21 and 21A, violate
the Equal Protection Clause. The judgment of the
Court of Appeals is
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, there is for me a
narrower ground for affirming the Court of Appeals.
This to me is a simple First Amendment case, that
amendment being applicable to the States by reason of
the Fourteenth. Stromberg v. California, 283 U. S. 359.
Under no stretch of the law as presently stated could
Massachusetts require a license for those who desire to
lecture on planned parenthood, contraceptives, the rights
of women, birth control, or any allied subject, or place
a tax on that privilege. As to license taxes on First
Amendment rights we said in Murdock v. Pennsylvania,
319 U. S. 105, 115:
"A license tax certainly does not acquire constitutional validity because it classifies the privileges
protected by the First Amendment along with the
wares and merchandise of hucksters and peddlers and
treats them all alike. Such equality in treatment
does not save the ordinance. Freedom of press,
freedom of speech, freedom of religion are in a preferred position."
We held in Thomas v. Collins, 323 U. S. 516, that a
person speaking at a labor union rally could not be
required to register or obtain a license:
"As a matter of principle a requirement of registration in order to make a public speech would seem
generally incompatible with an exercise of the rights of free speech and free assembly. Lawful public
assemblies, involving no element of grave and immediate danger to an interest the State is entitled to
protect, are not instruments of harm which require
previous identification of the speakers. And the
right either of workmen or of unions under these
conditions to assemble and discuss their own affairs
is as fully protected by the Constitution as the right
of businessmen, farmers, educators, political party
members or others to assemble and discuss their
affairs and to enlist the support of others.
If one who solicits support for the cause of
labor may be required to register as a condition to
the exercise of his right to make a public speech, so
may he who seeks to rally support for any social,
business, religious or political cause. We think a
requirement that one must register before he undertakes to make a public speech to enlist support for a
lawful movement is quite incompatible with the
requirements of the First Amendment." Id., at
539, 540.
Baird addressed an audience of students and faculty at
Boston University on the subject of birth control and
overpopulation. His address was approximately one
hour in length and consisted of a discussion of various
contraceptive devices displayed by means of diagrams
on two demonstration boards, as well as a display of
contraceptive devices in their original packages. In addition, Baird spoke of the respective merits of various
contraceptive devices; overpopulation in the world; crises
throughout the world due to overpopulation; the large
number of abortions performed on unwed mothers; and
quack abortionists and the potential harm to women resulting from abortions performed by quack abortionists.
Baird also urged members of the audience to petition the
Massachusetts Legislature and to make known their feel-ings with regard to birth control laws in order to bring
about a change in the laws. At the close of the address
Baird invited members of the audience to come to the
stage and help themselves to the contraceptive articles.
We do not know how many accepted Baird's invitation.
We only know that Baird personally handed one woman
a package of Emko Vaginal Foam. He was then arrested
and indicted (1) for exhibiting contraceptive devices and
(2) for giving one such device away. The conviction for
the first offense was reversed, the Supreme Judicial Court
of Massachusetts holding that the display of the articles
was essential to a graphic representation of the lecture.
But the conviction for the giving away of one article was
sustained. 355 Mass. 746, 247 N. E. 2d 574. The case
reaches us by federal habeas corpus.
Had Baird not "given away" a sample of one of the
devices whose use he advocated, there could be no question about the protection afforded him by the First
Amendment. A State may not "contract the spectrum
of available knowledge." Griswold v. Connecticut, 381
U. S. 479, 482. See also Thomas v. Collins, supra; Pierce
v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska,
262 U. S. 390. However noxious Baird's ideas might
have been to the authorities, the freedom to learn about
them, fully to comprehend their scope and portent, and
to weigh them against the tenets of the "conventional
wisdom," may not be abridged. Terminiello v. Chicago,
337 U. S. 1. Our system of government requires that we
have faith in the ability of the individual to decide wisely,
if only he is fully apprised of the merits of a controversy.
"Freedom of discussion, if it would fulfill its
historic function in this nation, must embrace all
issues about which information is needed or appropriate to enable the members of society to cope with
the exigencies of their period." Thornhill v. Alabama, 310 U. S. 88, i02.
The teachings of Baird and those of Galileo might be of a different order; but the suppression of either is
equally repugnant.
As Milton said in the Areopagitica, "Give me the liberty to know, to utter, and to argue freely according to
conscience, above all liberties."
It is said that only Baird's conduct is involved and
United States v. O'Brien, 391 U. S. 367, is cited. That
case involved a registrant under the Selective Service Act
burning his Selective Service draft card. When prosecuted for that act, he defended his conduct as "symbolic speech." The Court held it was not.
Whatever may be thought of that decision on the
merits,' O'Brien is not controlling here. The distinction
between "speech" and "conduct" is a valid one, insofar
as it helps to determine in a particular case whether the
purpose of the activity was to aid in the communication
of ideas, and whether the form of the communication so
interferes with the rights of others that reasonable regulations may be imposed.' See Public Utilities Comm'n
v. Pollak, 343 U. S. 451, 467 (DOUGLAS, J., dissenting). Thus, excessive noise might well be "conduct"-a form
of pollution-which can be made subject to precise, narrowly drawn regulations. See Adderley v. Florida, 385
U. S. 39, 54 (DOUGLAS, J., dissenting). But "this Court
has repeatedly stated, [First Amendment] rights are not
confined to verbal expression. They embrace appropriate types of action . . . ." Brown v. Louisiana, 383 U. S.
131, 141-142.
Baird gave an hour's lecture on birth control and as
an aid to understanding the ideas which he was propagating he handed out one sample of one of the devices
whose use he was endorsing. A person giving a lecture
on coyote-getters would certainly improve his teaching
technique if he passed one out to the audience; and he
would be protected in doing so unless of course the device
was loaded and ready to explode, killing or injuring
people. The same holds true in my mind for mousetraps, spray guns, or any other article not dangerous
per se on which speakers give educational lectures.
It is irrelevant to the application of these principles
that Baird went beyond the giving of information about
birth control and advocated the use of contraceptive
articles. The First Amendment protects the opportunity
to persuade to action whether that action be unwise or immoral, or whether the speech incites to action. See, e. g.,
Brandenburg v. Ohio, 395 U. S. 444; Edwards v. South
Carolina, 372 U. S. 229; Terminiello v. Chicago, supra.
In this case there was not even incitement to action.3
There is no evidence or finding that Baird intended that
the young lady take the foam home with her when he
handed it to her or that she would not have examined the article and then returned it to Baird, had he not been
placed under arrest immediately upon handing the article
over.4
First Amendment rights are not limited to verbal
expression.5 The right to petition often involves the
right to walk. The right of assembly may mean pushing
or jostling. Picketing involves physical activity as well
as a display of a sign. A sit-in can be a quiet, dignified
protest that has First Amendment protection even though
no speech is involved, as we held in Brown v. Louisiana,
supra. Putting contraceptives on display is certainly
an aid to speech and discussion. Handing an article
under discussion to a member of the audience is a
technique known to all teachers and is commonly used.
A handout may be on such a scale as to smack of a vendor's marketing scheme. But passing one article to an
audience is merely a projection of the visual aid and
should be a permissible adjunct of free speech. Baird
was not making a prescription nor purporting to give
medical advice. Handing out the article was not even a
suggestion that the lady use it. At most it suggested
that she become familiar with the product line.
I do not see how we can have a Society of the Dialogue,
which the First Amendment envisages, if time-honored
teaching techniques are barred to those who give educational lectures.
MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN joins, concurring in the result.
In Griswold v. Connecticut, 381 U. S. 479 (1965), we
reversed criminal convictions for advising married persons with respect to the use of contraceptives. As there
applied, the Connecticut law, which forbade using contraceptives or giving advice on the subject, unduly invaded a zone of marital privacy protected by the Bill of
Rights. The Connecticut law did not regulate the manufacture or sale of such products and we expressly left
open any question concerning the permissible scope of
such legislation. 381 U. S., at 485.
Chapter 272, § 21, of the Massachusetts General Laws
makes it a criminal offense to distribute, sell, or give away
any drug, medicine, or article for the prevention of conception. Section 21A excepts from this prohibition registered physicians who prescribe for and administer such
articles to married persons and registered pharmacists
who dispense on medical prescription. Appellee Baird was indicted for giving away Emko
Vaginal Foam, a "medicine and article for the prevention
of conception .... 2 The State did not purport to
charge or convict Baird for distributing to an unmarried
person.. No proof was offered as to the marital status
of the recipient. The gravamen of the offense charged
was that Baird had no license and therefore no authority
to distribute to anyone. As the Supreme Judicial Court
of Massachusetts noted, the constitutional validity of
Baird's conviction rested upon his lack of status as a
"distributor and not ... the marital status of the recipient." Commonwealth v. Baird, 355 Mass. 746, 753) 247
N. E. 2d 574, 578 (1969). The Federal District Court
was of the same view. I assume that a State's interest in the health of its
citizens empowers it to restrict to medical channels the
distribution of products whose use should be accompanied
by medical advice. I also do not doubt that various
contraceptive medicines and articles are properly available only on prescription, and I therefore have no difficulty with the Massachusetts court's characterization of
the statute at issue here as expressing "a legitimate interest in preventing the distribution of articles designed
to prevent conception which may have undesirable, if
not dangerous, physical consequences." Id., at 753, 247
N. E. 2d, at 578. Had Baird distributed a supply of the
so-called "pill," I would sustain his conviction under this
statute.4 Requiring a prescription to obtain potentially
dangerous contraceptive material may place a substantial
burden upon the right recognized in Griswold, but that
burden is justified by a strong state interest and does
not, as did the statute at issue in Griswold, sweep unnecessarily broadly or seek "to achieve its goals by means
having a maximum destructive impact upon" a protected
relationship. Griswold v. Connecticut, 381 U. S., at 485.
Baird, however, was found guilty of giving away vaginal foam. Inquiry into the validity of this conviction
does not come to an end merely because some contraceptives are harmful and their distribution may be restricted. Our general reluctance to question a State's
judgment on matters of public health must give way
where, as here, the restriction at issue burdens the constitutional rights of married persons to use contraceptives.
In these circumstances we may not accept on faith the
State's classification of a particular contraceptive as
dangerous to health. Due regard for protecting constitutional rights requires that the record contain evidence that a restriction on distribution of vaginal foam
is essential to achieve the statutory purpose, or the relevant facts concerning the product must be such as to
fall within the range of judicial notice.
Neither requirement is met here. Nothing in the record even suggests that the distribution of vaginal foam
should be accompanied by medical advice in order to
protect the user's health. Nor does the opinion of the
Massachusetts court or the State's brief filed here marshal
facts demonstrating that the hazards of using vaginal
foam are common knowledge or so incontrovertible that
they may be noticed judicially. On the contrary, the
State acknowledges that Emko is a product widely available without prescription. Given Griswold v. Connecticut, supra, and absent proof of the probable hazards of using vaginal foam, we could not sustain appellee's conviction had it been for selling or giving
away foam to a married person. Just as in Griswold,
where the right of married persons to use contraceptives
was "diluted or adversely affected" by permitting a conviction for giving advice as to its exercise, id., at 481, so
here, to sanction a medical restriction upon distribution
of a contraceptive not proved hazardous to health would
impair the exercise of the constitutional right.
That Baird could not be convicted for distributing
Emko to a married person disposes of this case. Assuming, arguendo, that the result would be otherwise had the
recipient been unmarried, nothing has been placed in the
record to indicate her marital status. The State has
maintained that marital status is irrelevant because
an unlicensed person cannot legally dispense vaginal foam either to married or unmarried persons. This approach
is plainly erroneous and requires the reversal of Baird's
conviction; for on the facts of this case, it deprives us
of knowing whether Baird was in fact convicted for making a constitutionally protected distribution of Emko to
a married person.
The principle established in Stromberg v. California,
283 U. S. 359 (1931), and consistently adhered to is that
a conviction cannot stand where the "'record fail[s] to
prove that the conviction was not founded upon a
theory which could not constitutionally support a verdict." Street v. New York, 394 U. S. 576, 586 (1969).
To uphold a conviction even "though we cannot know
that it did not rest on the invalid constitutional
ground ... would be to countenance a procedure which
would cause a serious impairment of constitutional
rights." Williams v. North Carolina, 317 U. S. 287, 292
(1942).
Because this case can be disposed of on the basis of
settled constitutional doctrine, I perceive no reason for
reaching the novel constitutional question whether a
State may restrict or forbid the distribution of contraceptives to the unmarried. Cf. Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 345-348 (1936)
(Brandeis, J., concurring).
MR. CHIEF JUSTICE BURGER, dissenting.
The judgment of the Supreme Judicial Court of Massachusetts in sustaining appellee's conviction for dispensing
medicinal material without a license seems eminently
correct to me and I would not disturb it. It is undisputed
that appellee is not a physician or pharmacist and was
prohibited under Massachusetts law from dispensing
contraceptives to anyone, regardless of marital status.
To my mind the validity of this restriction on dispensing
medicinal substances is the only issue before the Court, and appellee has no standing to challenge that part of
the statute restricting the persons to whom contraceptives are available. There is no need to labor this point,
however, for everyone seems to agree that if Massachusetts has validly required, as a health measure, that all
contraceptives be dispensed by a physician or pursuant
to a physician's prescription, then the statutory distinction based on marital status has no bearing on this case.
United States v. Raines, 362 U. S. 17, 21 (1960).
The opinion of the Court today brushes aside appellee's
status as an unlicensed layman by concluding that the
Massachusetts Legislature was not really concerned with
the protection of health when it passed this statute. MR.
JUSTICE WHITE acknowledges the statutory concern with
the protection of health, but finds the restriction on distributors overly broad because the State has failed to
adduce facts showing the health hazards of the particular
,substance dispensed by appellee as distinguished from
other contraceptives. MR. JUSTICE DOUGLAS' concurring
opinion does not directly challenge the power of Massachusetts to prohibit laymen from dispensing contraceptives, but considers that appellee rather than dispensing the substance was resorting to a "time-honored
teaching technique" by utilizing a "visual aid" as an adjunct to his protected speech. I am puzzled by this third
characterization of the case. If the suggestion is that
appellee was merely displaying the contraceptive material without relinquishing his ownership of it, then the
argument must be that the prosecution failed to prove
that appellee had "given away" the contraceptive material. But appellee does not challenge the sufficiency
of the evidence, and himself summarizes the record
as showing that "at the close of his lecture he invited
members of the audience . . . to come and help themselves." On the other hand, if the concurring opinion
means that the First Amendment protects the distribution of all articles "not dangerous per se" when the distribution is coupled with some form of speech, then I
must confess that I have misread certain cases in the
area. See, e. g., United States v. O'Brien, 391 U. S. 367,
376 (1968) ; Cox v. Louisiana, 379 U. S. 536, 555 (1965) ;
Giboney v. Empire Storage Co., 336 U. S. 490, 502
(1949).
My disagreement with the opinion of the Court and
that of MR. JUSTICE WHITE goes far beyond mere puzzlement, however, for these opinions seriously invade the
constitutional prerogatives of the States and regrettably
hark back to the heyday of substantive due process.
In affirming appellee's conviction, the highest tribunal
in Massachusetts held that the statutory requirement
that contraceptives be dispensed only through medical
channels served the legitimate interest of the State in
protecting the health of its citizens. The Court today
blithely hurdles this authoritative state pronouncement
and concludes that the statute has no such purpose.
Three basic arguments are advanced: First, since the distribution of contraceptives was prohibited as a moral
matter in Massachusetts prior to 1966, it is impossible
to believe that the legislature vas concerned with health
when it lifted the complete ban but insisted on medical
supervision. I fail to see why the historical predominance
of an unacceptable legislative purpose makes incredible
the emergence of a new and valid one.' See McGowan v. Maryland, 366 U. S. 420, 445-449 (1961). The second argument, finding its origin in a dissenting opinion
in the Supreme Judicial Court of Massachusetts, rejects
a health purpose because, "[i]f there is need to have a
physician prescribe . . . contraceptives, that need is as
great for unmarried persons as for married persons." 355
Mass. 746, 758, 247 N. E. 2d 574, 581. This argument
confuses the validity of the restriction on distributors with
the validity of the further restriction on distributees, a
part of the statute not properly before the Court. Assuming the legislature too broadly restricted the class of
persons who could obtain contraceptives, it hardly follows
that it saw no need to protect the health of all persons
to whom they are made available. Third, the Court sees
no health purpose underlying the restriction on distributors because other state and federal laws regulate
the distribution of harmful drugs. I know of no rule
that all enactments relating to a particular purpose must
be neatly consolidated in one package in the statute books
for, if so, the United States Code will not pass muster.
I am unable to draw any inference as to legislative purpose from the fact that the restriction on dispensing
contraceptives was not codified with other statutory provisions regulating the distribution of medicinal substances.
And the existence of nonconflicting, nonpre-emptive federal laws is simply without significance in judging the
validity or purpose of a state law on the same subject
matter.
It is possible, of course, that some members of the
Massachusetts Legislature desired contraceptives to be
dispensed only through medical channels in order to
minimize their use, rather than to protect the health of
their users, but I do not think it is the proper function
of this Court to dismiss as dubious a state court's explication of a state statute absent overwhelming and irrefutable reasons for doing so. MR. JUSTICE WHITE, while acknowledging a valid
legislative purpose of protecting health, concludes that
the State lacks power to regulate the distribution of the
contraceptive involved in this case as a means of protecting health.' The opinion grants that appellee's conviction would be valid if he had given away a potentially
harmful substance, but rejects the State's placing this
particular contraceptive in that category. So far as I
am aware, this Court has never before challenged the
police power of a State to protect the public from the
risks of possibly spurious and deleterious substances sold
within its borders. Moreover, a statutory classification
is not invalid
"simply because some innocent articles or transactions may be found within the proscribed class. The
inquiry must be whether, considering the end in view,
the statute passes the bounds of reason and assumes
the character of a merely arbitary fiat." Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 204 (1912).
But since the Massachusetts statute seeks to protect
health by regulating contraceptives, the opinion invokes
Griswold v. Connecticut, 381 U. S. 479 (1965), and puts
the statutory classification to an unprecedented test:
either the record must contain evidence supporting the
classification or the health hazards of the particular contraceptive must be judicially noticeable. This is indeed
a novel cQnstitutional doctrine and not surprisingly no
authority is cited for it.
Since the potential harmfulness of this particular medicinal substance has never been placed in issue in the state or federal courts, the State can hardly be faulted
for its failure to build a record on this point. And it
totally mystifies me why, in the absence of some evidence in the record, the factual underpinnings of the
statutory classification must be "incontrovertible" or a
matter of "common knowledge."
The actual hazards of introducing a particular foreign
substance into the human body are frequently controverted, and I cannot believe that unanimity of expert
opinion is a prerequisite to a State's exercise of its police
power, no matter what the subject matter of the regulation. Even assuming no present dispute among medical authorities, we cannot ignore that it has become
commonplace for a drug or food additive to be universally regarded as harmless on one day and to be condemned as perilous on the next. It is inappropriate
for this Court to overrule a legislative classification by
relying on the present consensus among leading authorities. The commands of the Constitution cannot fluctuate with the shifting tides.of scientific opinion.
Even if it were conclusively established once and for
all that the product dispensed by appellee is not actually
or potentially dangerous in the somatic sense, I would
still be unable to agree that the restriction on dispensing
it falls outside the State's power to regulate in the area
of health. The choice of a means of birth control, although a highly personal matter, is also a health matter
in a very real sense, and I see nothing arbitrary in a
requirement of medical supervision.' It is generally
acknowledged that contraceptives vary in degree of effectiveness and potential harmfulness.4 There may be
compelling health reasons for certain women to choose
the most effective means of birth control available, no
matter how harmless the less effective alternatives.5
Others might be advised not to use a highly effective
means of contraception because of their peculiar susceptibility to an adverse side effect.' Moreover, there may
be information known to the medical profession that a
particular brand of contraceptive is to be preferred or
avoided, or that it has not been adequately tested.
Nonetheless, the concurring opinion would hold, as a
constitutional matter, that a State must allow someone
without medical training the same power to distribute
this medicinal substance as is enjoyed by a physician.
It is revealing, I think, that those portions of the majority and concurring opinions rejecting the statutory
limitation on distributors rely on no particular provision of the Constitution. I see nothing in the Fourteenth Amendment or any other part of the Constitution that even vaguely suggests that these medicinal
forms of contraceptives must be available in the open
market. I do not challenge Griswold v. Connecticut,
supra, despite its tenuous moorings to the text of the
Constitution, but I cannot view it as controlling authority for this case. The Court was there confronted with
a statute flatly prohibiting the use of contraceptives, not
one regulating their distribution. I simply cannot believe that the limitation on the class of lawful distributors has significantly impaired the right to use contraceptives in Massachusetts. By relying on Griswold in
the present context, the Court has passed beyond the
penumbras of the specific guarantees into the uncircumscribed area of personal predilections.
The need for dissemination of information on birth
control is not impinged in the slightest by limiting the
distribution of medicinal substances to medical and pharmaceutical channels as Massachusetts has done by statute. The appellee has succeeded, it seems, in cloaking
his activities in some new permutation of the First
Amendment although his conviction rests in fact and
law on dispensing a medicinal substance without a license. I am constrained to suggest that if the Constitution can be strained to invalidate the Massachusetts
statute underlying appellee's conviction, we could quite
as well employ it for the protection of a "curbstone
quack," reminiscent of the "medicine man" of times past,
who attracted a crowd of the curious with a soapbox
lecture and then plied them with "free samples" of some
unproved remedy. Massachusetts presumably outlawed such activities long ago, but today's holding seems
to invite their return.