The U.S. Supreme Court decision in Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) overturned a Seventh Circuit Court of Appeals ruling and thus upheld a village ordinance regulating the sale of drug paraphernalia against charges by a business (Flipside) that it was unconstitutionally vague and overbroad. The Hoffman Estates, Illinois, ordinance required businesses, like Flipside, to purchase licenses when they sold any items “designed or marketed for use with illegal cannabis or drugs.”

Court upheld ordinance regulating sale of drug paraphernalia

Justice Thurgood Marshall wrote the Supreme Court’s unanimous opinion, with Justice John Paul Stevens not participating. Justice Marshall labeled Flipside’s claim that the village imposed a prior restraint on speech as “exorbitant.” He observed that the ordinance did not prohibit the sale of literature related to drugs but only regulated the placement of such literature near items that accompany such drug use. Any commercial speech interest was attenuated when directed to illegal activities, and “the overbreadth doctrine does not apply to commercial speech.”

Court said ordinance was not vague

In addressing the issue of vagueness, Marshall drew from the decision in Grayned v. City of Rockford (1972), noting that “a scienter [knowledge] requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” In this case, state law was clear as to which drugs were illegal.

Marshall upheld the phrase “designed . . . for use” as clearly referring “to the design of the manufacturer, not the intent of the retailer or customer.” He also wrote that it was “sufficiently clear that items which are principally used for non-drug purposes, such as ordinary pipes, are not ‘designed for use’ with illegal drugs.” By contrast, “roach clips” and similar objects that Flipside sold had no other known purpose.

Marshall further stated that the village had identified the words “marketed for use” as referring to “a retailer’s intentional display and marketing or merchandise.” He went on to suggest that the village might consider adopting “administrative regulations that will sufficiently narrow potentially vague or arbitrary interpretations of the ordinance.” In conclusion, he observed that his decision that the ordinance was “not facially overbroad or vague” did not speak either to its wisdom or effectiveness.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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