Hoffman Estates v. Flipside, Hoffman Estates, Inc.

Supreme Court of United States
455 U.S. 489 (1982)

ELI5:

Rule of Law:

An economic regulation that does not implicate constitutionally protected conduct is not unconstitutionally vague on its face if it provides fair notice and is not impermissibly vague in all its applications, particularly when it regulates business conduct and includes a scienter requirement.

Facts:

The Flipside, Hoffman Estates, Inc. operated a retail store selling merchandise including records, novelty items, and smoking accessories.
The Village of Hoffman Estates enacted Ordinance No. 969-1978, effective May 1, 1978, which required a license to sell any items 'designed or marketed for use with illegal cannabis or drugs.'
The ordinance required a $150 license fee, affidavits from employees stating they had not been convicted of drug offenses, and a record of each sale, including the purchaser's name and address.
After an inquiry, the village determined Flipside appeared to be in violation of the ordinance.
The Village Attorney advised Flipside's owner to remove certain items 'for his protection,' which included roach clips, various pipes, rolling papers, and a mirror with 'Cocaine' written on it.
Flipside displayed items like pipes and rolling papers in close proximity to literature such as 'High Times' magazine and the 'Marijuana Grower’s Guide.'
Flipside also posted a sign in its store stating, 'You must be 18 or older to purchase any head supplies.'

Procedural Posture:

The Flipside, Hoffman Estates, Inc. filed a lawsuit against the Village of Hoffman Estates in the United States District Court for the Northern District of Illinois, seeking injunctive and declaratory relief.
The District Court denied a preliminary injunction and, after a bench trial, upheld the ordinance's constitutionality, awarding judgment to the Village.
Flipside (appellant) appealed to the United States Court of Appeals for the Seventh Circuit.
The Court of Appeals for the Seventh Circuit reversed the District Court's judgment, holding that the ordinance was unconstitutionally vague on its face.
The Village of Hoffman Estates (petitioner) sought and was granted review by the U.S. Supreme Court.

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Issue:

Is a municipal ordinance requiring a license for the sale of any item that is 'designed or marketed for use with illegal cannabis or drugs' unconstitutionally vague on its face, in violation of the Due Process Clause of the Fourteenth Amendment?

Opinions:

Majority - Justice Marshall

No. The ordinance is not unconstitutionally vague on its face because it is an economic regulation that is reasonably clear in its application to the complainant's conduct. First, the ordinance does not reach a substantial amount of constitutionally protected conduct, as it regulates commercial activity promoting illegal transactions, a category of speech not protected by the First Amendment and to which the overbreadth doctrine does not apply. Second, in a facial vagueness challenge to an economic regulation, the complainant must show the law is impermissibly vague in all its applications. This ordinance is subject to a less strict vagueness test because it is an economic regulation, imposes primarily civil penalties, and contains a scienter requirement. The 'designed for use' standard refers to the objective physical characteristics of an item, which clearly covers items like 'roach clips' sold by Flipside. The alternative 'marketed for use' standard is 'transparently clear,' as it focuses on the retailer’s intent to appeal to or encourage illegal drug use through its marketing and display choices. Flipside’s conduct, including its store displays and signage, clearly falls within the 'marketed for use' standard, meaning the law provides fair warning to Flipside and its facial challenge must fail.

Concurring - Justice White

No. The judgment should be reversed because the Court of Appeals erred in its vagueness analysis, and it is unnecessary to address the overbreadth doctrine. A facial vagueness challenge fails if the enactment is not impermissibly vague in all of its applications. The 'marketed for use' standard in the ordinance is 'transparently clear' and applies to some of Flipside's conduct. Because the ordinance is not vague in all applications, the facial challenge must be rejected on that basis alone, without needing to delve into the more complex and tenuous issue of First Amendment overbreadth.

Analysis:

This decision establishes a high threshold for succeeding on a facial vagueness challenge against economic regulations. It provides a clear roadmap for municipalities to draft defensible drug paraphernalia laws by including a scienter requirement, such as the 'marketed for use' standard, which focuses on the seller's intent rather than just the objective characteristics of an item. The case also significantly clarifies that the overbreadth doctrine, a tool for challenging laws that chill free speech, does not apply to commercial speech. This holding gives legislatures greater latitude to regulate commercial activities that may be tied to illegal conduct.

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