For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann, Schettino and Haneman. For affirmance -- None. Weintraub, C.J. (concurring in result). Francis and Goldmann, JJ., join in this concurring opinion and Francis, J., joins also in the majority opinion.
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, 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." 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.) under which an appropriate declaration could have been obtained without any criminal action whatever. See Lucky Calendar Co. v. Cohen, 19 N.J. 399 (1955); Sanitary Vendors, Inc. v. Byrne, 40 N.J. 157 (1963); cf. Evers v. Dwyer, 358 U.S. 202, 79 S. Ct. 178, 3 L. Ed. 2 d 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. 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. See Annot. 96 A.L.R. 2 d 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 simply provides that their display or exposure shall be unlawful if "without just cause." The statute had its origins in anti-obscenity legislation (40 N.J., at p. 160) 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. 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 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. 2 d 1, 5-7 (1966)) or suggestive of obtrusiveness, pandering and the like (Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414, 18 L. Ed. 2 d 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. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2 d 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. 2 d, 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. 2 d 31 (1966); Breard v. 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 (1963); State v. Salerno, 27 N.J. 289, 296 (1958); State v. Fair Lawn Service Center, Inc., 20 N.J. 468, 470 (1956).
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 ...