Eisenstadt v. Baird

PETITIONER: Eisenstadt
LOCATION: Leon County Courthouse

DOCKET NO.: 70-17
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 405 US 438 (1972)
ARGUED: Nov 17, 1971 / Nov 18, 1971
DECIDED: Mar 22, 1972

Joseph R. Nolan - Argued the cause for appellant
Joseph D. Tydings - Argued the cause for appellee

Facts of the case

William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population. Massachusetts charged Baird with a felony, to distribute contraceptives to unmarried men or women. Under the law, only married couples could obtain contraceptives; only registered doctors or pharmacists could provide them. Baird was not an authorized distributor of contraceptives.


Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state instrusion by the Fourteenth Amendment?

Media for Eisenstadt v. Baird

Audio Transcription for Oral Argument - November 18, 1971 in Eisenstadt v. Baird

Audio Transcription for Oral Argument - November 17, 1971 in Eisenstadt v. Baird

Warren E. Burger:

We will hear arguments in number 17, Eisenstadt against Baird.

Mr. Nolan?

Joseph R. Nolan:

Mr. Chief Justice and may it please the Court.

The case comes to this Court on an appeal from the First Circuit the Court of Appeals.

This Court noted probable jurisdiction on March 1st, 1971.

The case started factually on April 6th of 1967, when the appellee Mr. Baird, addressed group of people, mostly students at Boston University, pursuant to an invitation.

Approximately 2,000 people were in attendance.

At that time, Mr. Baird used to give a demonstration boards in his lecture on “Contraception.”

These demonstration boards had various contraceptive devices and alongside of the lectern, there was a cotton box filled with various other contraceptive devices.

After the lecture, he invited the people to come to the lectern, and in grab bag fashion, take what they wish from this cotton.

He then, I repeat it was after the lecture, he then handed a can of Emko, an admittedly contraceptive device to a young lady.

Now, I do want to bring to the Court's attention, an inaccuracy in the Appellant’s brief, in the reference made to this young lady as being unmarried.

The record does not indicate nor did the Commonwealth at this time introduce evidence tending to show that she was unmarried.

Warren E. Burger:

What page is that?

It first appear on you --

Joseph R. Nolan:

It is not significant however to the case.

Warren E. Burger:

Page four.

Joseph R. Nolan:

Page four on the statement of the case, Mr. Chief Justice.

Warren E. Burger:


Joseph R. Nolan:

It is not however, significant to the case, but I do want to point out the inaccuracy and the correction made by Mr. Balliro in his brief, the original brief, is well taken.

Repeatedly doing the lecture, the appellee, Mr. Baird, invited the police to arrest him.

He said, “Why do not you arrest me officers, I am violating your Massachusetts Law?”

Finally, when he handed this can of Emko to this particular young lady, the police complied with his wishes.

Now, the appellee was charged in two indictments returned by the Suffolk County Grand Jury, for the violation of Massachusetts General Law, Chapter 272, Section 21 which among other things prohibits the giving away and the exhibition of, to use the words of the statute, articles intended for the prevention of conception.

After the Trial in Suffolk Superior Court, jury waived he was found guilty and the Trial Judge reported the case to the Supreme Judicial Court.

One indictment charged, the defendant with exhibiting contraceptive devices in violation of the statute and the other charged him with the giving away.

Now, there are other words in there which are not important to us such as selling, lending and so forth.

Two words that are important, are exhibiting and giving away.

The Supreme Judicial Court reversed the conviction of that under the indictment charging him with exhibiting because in its opinion, it clearly violated his First Amendment rights, particularly the freedom of speech right.

However, by divided court, he had sustained the conviction under the indictment charging the giving away of the can of Emko.