Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), is a United States Supreme Court decision concerning the vagueness and overbreadth doctrines as they apply to restrictions on commercial speech. The justices unanimously upheld an ordinance passed by a Chicago suburb that imposed licensing requirements on the sale of drug paraphernalia by a local record store. Their decision overturned the Seventh Circuit Court of Appeals.
Concerned that the sale of items such as bongs and rolling papers, along with books and magazines devoted to the era's drug culture promoted and encouraged illegal recreational drug use, the board of trustees of the village of Hoffman Estates, Illinois, passed an ordinance requiring that vendors of drug paraphernalia obtain a license to do so, as they lacked the power to ban their sale outright. As a condition of that license, they were required to keep a record of the name and address of anyone buying such items for inspection by the police at any time. One of the two stores it applied to, The Flipside, filed suit in federal court for the Northern District of Illinois, seeking to have the ordinance invalidated, claiming its scope was so wide and overbroad as to possibly prevent the store from selling the books and magazines, thus infringing its First Amendment rights.
Justice Thurgood Marshall wrote for the Supreme Court that the village's ordinance was neither vague nor overbroad since it clearly defined the items affected and only explicitly prohibited marketing that alluded to their use in consuming illegal controlled substances. Byron White wrote a separate concurrence arguing that the Court need only have considered the vagueness issue since the Seventh Circuit had not considered the overbreadth claim. John Paul Stevens took no part in the case.
In the wake of the case many more communities began enacting and enforcing drug-paraphernalia laws, greatly curtailing their sale. It has not had much impact since then, or outside that narrow area of law, but it did establish two important precedents for later cases concerning the overbreadth and vagueness doctrines. In the former area, it clarified an earlier ruling and stated explicitly that the doctrine does not apply to commercial speech; in the latter, it established that a statute challenged for vagueness on its face, prior to enforcement, must be "impermissibly vague in all its applications" for the plaintiff to prevail. It also established that laws regulating economic activity, already held to a lower standard for vagueness since businesspeople can reasonably be expected to know their industry and its products, have an even lower standard to meet when they only call for civil penalties.
Background
During the 1970s, the late 1960s counterculture spread from the college campuses and cities that had nurtured it into American culture as a whole, as those who had experienced it as college students graduated and entered society. One of its many effects was that the recreational use of illegal drugs became more widespread and socially accepted, even outside of the former students. Sociologists Erich Goode and Nachman Ben-Yehuda later wrote that "[t]he 1970s represented something of a high water mark in both the use and the public acceptance and tolerance of illegal drugs."
Marijuana and cocaineDEA 1973–2003, 35. in particular were widely used and not considered to be terribly dangerous. Popular culture of the time depicted drug culture and illegal drug use as common and unexceptional. Comedians like Cheech and Chong built their acts around drug humor, songs like "Cocaine" became hits and movies like Annie Hall had scenes with drug use.
Reflecting this trend, sales of drug paraphernalia, products that facilitated the use of illegal drugs, proliferated, becoming a multibillion-dollar business. At first sold on the streets, eventually head shops dedicated to selling them opened up. Stores that sold other merchandise associated with the counterculture, such as rock records, also sold paraphernalia. Some did so quite blatantly, using slogans like "Everything You Need But The Weed," which led lawmakers to believe that these establishments were promoting illegal drug use among teenagers, and indeed even mocking the illegality of those drugs.Regnier, Thomas; "Civilizing" Drug Paraphernalia Policy: Preserving Our Free Speech and Due Process Rights While Protecting Children ; 14 N.Y.U. J. of Leg and Public Pol'y 115, 125 (2011). Retrieved June 29, 2012.
In response, many communities began passing ordinances that either restricted or prohibited their sale outright. The head shops and other sellers of paraphernalia challenged them in court. While some survived,Record Head Inc. v. Olson, 476 F.Supp. 366 (D.N.D., 1979) many early ones were overturned by courts as vague due to their drafters' lack of familiarity with the targeted items and the fact that most smoking equipment can also be used to smoke tobacco and other legal substances, therefore making it hard to say that it is intended and sold only with illegal use in mind.Regnier, 123.
Compounding the ordinances' constitutional difficulties was the Supreme Court's recent decision in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council,Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, which held that commercial speech was protected under the First Amendment. A Lawrence Township, New Jersey, ordinance targeting five head shops in the Quaker Bridge Mall was thus found to be overbroad since it banned advertising paraphernalia to minors;Record Museum v. Lawrence Township, 481 F.Supp. 768 (D.N.J., 1979) similarly, a Newark ordinance banning the advertising of paraphernalia was struck down.Bambu Sales, Inc. v. Gibson, 474 F.Supp. 1297 (D.N.J., 1979) In response, the Drug Enforcement Administration (DEA) drafted a model ordinance for communities in 1979.
Underlying dispute
In 1978, a year before the DEA promulgated its model ordinance, the board of trustees of the village of Hoffman Estates, Illinois, a suburb of Chicago, passed an ordinance of its own. It did not ban the sale of paraphernalia, but instead required those businesses selling "any item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs" to get a license. Applicants were required to file an affidavit certifying that no one employed by the business had ever been convicted of a drug-related offense and to keep a record of the name and address of anyone purchasing items covered by the law, which the village police could inspect at any time. Sales to minors were also prohibited. The license fee was $150 (roughly $ in modern dollars), with any violation punishable by a fine of $10.Flipside, Etc. v. Village of Hoffman Estates (hereafter Hoffman Estates I), 485 F. Supp. 400, 402–404 (N.D. Ill., 1980).
The village's attorney determined that two businesses in Hoffman Estates were affected by the ordinance. One of them, the Flipside, had been doing business on West Higgins Road in the village for three years, selling primarily recorded music and accessories for that, as well as jewelry and novelty devices. In one section of the store it sold paraphernalia, accompanied by books such as A Child's Garden of Grass and Marijuana Grower's Guide and magazines like High Times, Rolling Stone and National Lampoon, which often carried articles either discussing drug culture or casually depicting illegal drug use.
After the ordinance passed, the Flipside was notified that it was likely affected. It requested from the village attorney further guidance on what sort of specific items it sold were likely to be affected. Items such as roach clips were in the guidelines as covered by the ordinance. Other items were determined to be covered if they were displayed in the proximity of "literature encouraging illegal use of cannabis or illegal drugs."
The Flipside decided not to apply for a license. Instead it removed 80 items from its shelves and filed suit in federal court, alleging the ordinance was "vague, overbroad, capable of being arbitrarily enforced, and not reasonably related to any legitimate governmental objective of the village in controlling drug abuse." These in turn deprived the Flipside of its rights under the First Amendment and the Commerce Clause. Enforcement of the ordinance would similarly violate its right to due process and equal protection under the Fourteenth Amendment.
Lower courts
The case was first heard by the federal court for the Northern District of Illinois. In 1980, Judge George N. Leighton ruled for the village, holding the ordinance neither vague nor overbroad. His decision was then reversed by the Seventh Circuit Court of Appeals.
District court
After reviewing the existing law on the subject of vagueness, starting with the Supreme Court's decision in Grayned v. City of RockfordGrayned v. City of Rockford, eight years earlier, Leighton considered Hoffman Estates' ordinance. "It is obvious that [it] is not a model of legislative clarity," he began. "Its purpose, nonetheless, is evident." The words "item", "effect", "paraphernalia", "accessory" or even "thing" were not used in a technical sense; "they are, in fact, ordinary words." Since no precedent had considered their definition, he resorted to a dictionary and found clear and specific definitions for all but one. To get a better handle on the remaining word, "paraphernalia", he looked to a 1954 decision in a bookmaking case by a California appellate court, which noted that it was "not a technical word in the law of crimes, although it may be in the law of property."People v. Watkins, 126 Cal.App.2d 199, 205 (1954), cited at Hoffman Estates I, 406. More recently, he noted, both law enforcement and drug users had begun referring to the items targeted by the ordinance collectively as paraphernalia, and the Eighth Circuit had taken notice of that usage in a case where it upheld the seizure of such items based on search warrant which had used the word.United States v. Johnson 541 F. 2d 1311, 1315 (8th Cir., 1976), cited at Hoffman Estates I, 407.Hoffman Estates I, 406–07.
At trial the village attorney had given testimony suggesting that he did not know the meaning of some of the terms in the guidelines, and the village president had testified that she did not know what, exactly, was being regulated. The Flipside had argued that these pointed to the statute's vagueness, but Leighton dismissed those concerns. Both passages had been taken out of context, he wrote. The attorney had been describing how he relied on a report from the police on how such items were displayed in a store, and the village president had similarly explained how she had relied on expertise from the police that she did not herself possess to inform her vote in favor of the ordinance. The judge also noted that the village had enacted an administrative review process to resolve questions over potentially vague terms in the ordinance at the time of any application for a license.
"The guidelines adopted almost contemporaneously with the ordinance, together with the terms used, lead this court to conclude that the operative words of the ordinance under attack are not vague," Leighton wrote. "They are common, ordinary expressions, the meaning of which is known to everyone familiar with the English language. They are sufficiently clear that all persons that acted for and on behalf of the plaintiff could gain a reasonably clear idea of what the ordinance required ..." If they had not been, the Flipside would not have, prior to litigation, removed from its shelves enough items for the village to have conceded to the court that the ordinance no longer applied to it.