hoffman estates flipside hoffman estates argued december decided march ordinance appellant village requires business obtain license sells items designed marketed use illegal cannabis drugs guidelines define items roach clips used smoke cannabis pipes paraphernalia sale required licensed appellee sold variety merchandise store including roach clips specially designed pipes used smoke marihuana upon notified possible violation ordinance brought suit federal district claiming ordinance unconstitutionally vague overbroad requesting injunctive declaratory relief damages district upheld ordinance awarded judgment village defendants appeals reversed ground ordinance unconstitutionally vague face held ordinance facially overbroad vague reasonably clear application appellee pp facial challenge overbreadth vagueness enactment must first determine whether enactment reaches substantial amount constitutionally protected conduct overbreadth challenge must fail examine facial vagueness challenge uphold challenge enactment impermissibly vague applications pp ordinance violate appellee first amendment rights overbroad inhibits rights parties ordinance restrict speech simply regulates commercial marketing items labels reveal may used illicit purpose thus embrace noncommercial speech respect commercial speech interest implicated ordinance restriction manner marketing appreciably limit appellee communication information except extent directed commercial activity promoting encouraging illegal drug use activity deemed speech speech proposing illegal transaction thus subject government regulation ban irrelevant whether ordinance overbroad scope encompassing person commercial speech since overbreadth doctrine apply commercial speech pp respect facial vagueness challenge appellee shown ordinance impermissibly vague applications ordinance language designed use unconstitutionally vague face since clear standard encompasses least item principally used illegal drugs virtue objective features features designed manufacturer thus designed use standard sufficiently clear cover least items appellee sold roach clips specially designed pipes marketed use standard guidelines refer display paraphernalia proximity covered items otherwise uncovered items thus standard requires scienter part retailer test appellee ample warning marketing activities required license displaying certain magazine certain books dealing illegal drugs physically close pipes colored rolling paper clear violation guidelines selling roach clips pp ordinance language sufficiently clear speculative danger arbitrary enforcement render void vagueness facial challenge pp marshall delivered opinion burger brennan blackmun powell rehnquist joined white filed opinion concurring judgment post stevens took part consideration decision case richard williams argued cause filed briefs appellants michael pritzker argued cause filed brief appellee ronald zumbrun john findley filed brief community action drug abuse amicus curiae urging reversal charles trost filed brief american businesses constitutional rights amicus curiae urging affirmance briefs amici curiae filed state arkansas et al steve clark attorney general arkansas macfarlane attorney general colorado carl ajello attorney general connecticut richard gebelein attorney general delaware jim smith attorney general florida mitchell franks david leroy attorney general idaho linley pearson attorney general indiana robert stephan attorney general kansas william guste attorney general louisiana james tierney attorney general maine stephen sachs attorney general maryland paul strain dennis sweeney linda lamone assistant attorneys general paul douglas attorney general nebraska richard bryan attorney general nevada james zazzali attorney general new jersey jeff bingaman attorney general new mexico rufus edmisten attorney general north carolina david crump james wallace deputy attorneys general jan eric cartwright attorney general oklahoma leroy zimmerman attorney general pennsylvania mark white attorney general texas david wilkinson attorney general utah kenneth eikenberry attorney general washington village wilmette illinois robert mangler justice marshall delivered opinion case presents facial challenge drug paraphernalia ordinance ground unconstitutionally vague overbroad ordinance question requires business obtain license sells items designed marketed use illegal cannabis drugs village hoffman estates ordinance appeals seventh circuit held ordinance vague face noted probable jurisdiction reverse three years prior may appellee flipside hoffman estates flipside sold variety merchandise including phonographic records smoking accessories novelty devices jewelry store located village hoffman estates village february village enacted ordinance regulating drug paraphernalia effective may ordinance makes unlawful person sell items effect paraphernalia accessory thing designed marketed use illegal cannabis drugs defined illinois revised statutes without obtaining license therefor license fee business must also file affidavits licensee employees convicted offense moreover business must keep record sale regulated item including name address purchaser open police inspection regulated item may sole minor violation subject fine less day violation continues gives rise separate offense series licensing guidelines prepared village attorney define paper roach clips pipes paraphernalia sale required licensed administrative inquiry village determined flipside one store appeared violation ordinance village attorney notified flipside existence ordinance made copy ordinance guidelines available flipside flipside owner asked guidance concerning items covered ordinance village attorney advised remove items certain section store protection app items included according flipside description clamp chain ornaments alligator clip key chains necklaces earrings cigarette holders glove stretchers scales strainers pulverizer squeeze bottles pipes water pipes pins herb sifter mirrors vials cigarette rolling papers tobacco snuff may instead applying license seeking clarification via administrative procedures village established licensing ordinances flipside filed lawsuit district northern district illinois complaint alleged inter alia ordinance unconstitutionally vague overbroad requested injunctive declaratory relief damages district hearing testimony declined grant preliminary injunction case tried without jury additional evidence stipulated testimony issued opinion upholding constitutionality ordinance awarded judgment village defendants supp appeals reversed ground ordinance unconstitutionally vague face reviewed language ordinance guidelines found vague respect certain conceivable applications ordinary pipes paper clips sold next rolling stone magazine also suggested subjective nature marketing test creates danger arbitrary discriminatory enforcement alternative lifestyles finally determined availability administrative review guidelines cure defect thus concluded ordinance impermissibly vague face ii facial challenge overbreadth vagueness law first task determine whether enactment reaches substantial amount constitutionally protected conduct overbreadth challenge must fail examine facial vagueness challenge assuming enactment implicates constitutionally protected conduct uphold challenge enactment impermissibly vague applications plaintiff engages conduct clearly proscribed complain vagueness law applied conduct others therefore examine complainant conduct analyzing hypothetical applications law appeals case explicitly consider whether ordinance reaches constitutionally protected conduct overbroad whether ordinance vague applications instead determined ordinance void vagueness unclear applications conduct flipside hypothetical parties proper analysis however ordinance facially invalid iii first examine whether ordinance infringes flipside first amendment rights overbroad inhibits first amendment rights parties flipside makes exorbitant claim village imposed prior restraint speech guidelines treat proximity literature indicium paraphernalia marketed use illegal cannabis drugs flipside also argues presence designs logos slogans paraphernalia may trigger enforcement ordinance infringes protected symbolic speech brief appellee arguments long detain us first village directly infringed noncommercial speech flipside parties ordinance licenses regulates sale items displayed within proximity literature encouraging illegal use cannabis illegal drugs guidelines supra prohibit otherwise regulate sale literature although designs names cigarette papers may subject items regulation village restrict speech simply regulates commercial marketing items labels reveal may used illicit purpose scope ordinance therefore embrace noncommercial speech second insofar commercial speech interest implicated attenuated interest displaying marketing merchandise manner retailer desires doubt village restriction manner marketing appreciably limits flipside communication information one obvious telling exception ordinance expressly directed commercial activity promoting encouraging illegal drug use activity deemed speech speech proposing illegal transaction government may regulate ban entirely central hudson gas electric public service pittsburgh press human relations finally irrelevant whether ordinance overbroad scope encompassing protected commercial speech persons overbreadth doctrine apply commercial speech central hudson supra iv law reach constitutionally protected conduct therefore satisfies overbreadth test may nevertheless challenged face unduly vague violation due process succeed however complainant must demonstrate law impermissibly vague applications flipside makes showing standards evaluating vagueness enunciated grayned city rockford vague laws offend several important values first assume man free steer lawful unlawful conduct insist laws give person ordinary intelligence reasonable opportunity know prohibited may act accordingly vague laws may trap innocent providing fair warning second arbitrary discriminatory enforcement prevented laws must provide explicit standards apply vague law impermissibly delegates basic policy matters policemen judges juries resolution ad hoc subjective basis attendant dangers arbitrary discriminatory applications footnotes omitted finally perhaps important factor affecting clarity constitution demands law whether threatens inhibit exercise constitutionally protected rights example law interferes right free speech association stringent vagueness test apply ordinance simply regulates business behavior contains scienter requirement respect alternative marketed use standard ordinance nominally imposes civil penalties however village concedes ordinance prohibitory stigmatizing effect may warrant relatively strict test flipside facial challenge fails test appropriate either criminal law ordinance sufficiently clear applied flipside ordinance requires flipside obtain license sells items effect paraphernalia accessory thing designed marketed use illegal cannabis drugs defined illinois revised statutes flipside expresses uncertainty drugs description encompasses district noted illinois law clearly defines cannabis numerous controlled drugs including cocaine rev ch hand words items effect paraphernalia accessory thing identify type merchandise village desires regulate flipside challenge thus appropriately focuses language designed marketed use either designed use marketed use standard conclude least items sold flipside covered thus flipside facial challenge unavailing designed use appeals speculation meaning design largely unfounded guidelines refer paper colorful design specific items conclusively designed designed illegal use principal meaning design fashion according plan webster new international dictionary english language ed cf lanzetta new jersey therefore plain standard encompasses least item principally used illegal drugs virtue objective features features designed manufacturer business person ordinary intelligence understand term refers design manufacturer intent retailer customer also sufficiently clear items principally used nondrug purposes ordinary pipes designed use illegal drugs moreover issue fair warning present case since flipside concedes phrase refers structural characteristics item ordinance guidelines contain ambiguities nevertheless designed use standard sufficiently clear cover least items flipside sold ordinance guidelines explicitly regulates roach clips flipside admitted store sold items see tr village chief police testified never seen roach clip used purpose smoke cannabis app chief also testified specially designed pipe flipside marketed typically used smoke marihuana ibid whether guidelines administrative rules enforcement policy clarify ambiguous scope standard respects concern facial challenge marketed use test flipside ample warning marketing activities required license flipside displayed magazine high times books entitled marijuana grower guide children garden grass pleasures cocaine physically close pipes colored rolling papers clear violation guidelines noted flipside admitted store sold roach clips principally used illegal purposes finally section store flipside posted sign must older purchase head supplies tr appeals also held ordinance provides insufficient standards enforcement specifically feared ordinance might used harass individuals alternative lifestyles views reviewing business regulation facial vagueness however principal inquiry whether law affords fair warning proscribed moreover emphasis almost inescapable reviewing challenge law evidence introduced indicate whether ordinance enforced discriminatory manner aim inhibiting unpopular speech language ordinance sufficiently clear speculative danger arbitrary enforcement render ordinance void vagueness cf papachristou city jacksonville coates city cincinnati suggest risk discriminatory enforcement insignificant testimony village attorney drafted ordinance village president police chief revealed confusion whether ordinance applies certain items well extensive reliance judgment police officers give meaning ordinance enforce fairly stage however prepared hold risk jeopardizes entire ordinance assume village take steps minimize dangers arbitrary enforcement village may adopt administrative regulations sufficiently narrow potentially vague arbitrary interpretations ordinance economic regulation especially administrative regulation often suffice clarify standard otherwise uncertain scope also find significant village testimony primarily relied marketing aspect standard require ambiguous analysis whether paraphernalia designed illegal drug use therefore presents lesser risk discriminatory enforcement although possible specific future applications may engender concrete problems constitutional dimension time enough consider problems arise joseph seagram sons hostetter vi many american communities recently enacted laws regulating prohibiting sale drug paraphernalia determine whether laws wise effective course province see ferguson skrupa hold legislation facially overbroad vague reach constitutionally protected conduct reasonably clear application complainant accordingly judgment appeals reversed case remanded proceedings consistent opinion ordered appendix opinion village hoffman estates ordinance whereas certain items designed marketed use illegal drugs retailed within village hoffman estates cook county illinois whereas recognized items legal retail items sale banned whereas evidence items designed marketed use illegal cannabis drugs best interests health safety welfare citizens village hoffman estates regulate within village sale items designed marketed use illegal cannabis drugs therefore ordained president board trustees village hoffman estates cook county illinois follows section hoffman estates municipal code amended adding thereto additional section section additional section shall read follows sec items designed marketed use illegal cannabis drugs license required shall unlawful person persons principal clerk agent servant sell items effect paraphernalia accessory thing designed marketed use illegal cannabis drugs defined illinois revised statutes without obtaining license therefor licenses shall addition licenses held applicant application sell item effect paraphernalia accessory thing designed marketed use illegal cannabis drugs shall addition requirements article accompanied affidavits applicant every employee authorized sell items person never convicted offense shall unlawful sell give items described section form male female child eighteen years age every licensee must keep record every item effect paraphernalia accessory thing designed marketed use illegal cannabis drugs sold record shall open inspection police officer time hours business record shall contain name address purchaser name quantity product date time sale licensee agent licensee signature records shall retained less two years applicant shall comply applicable regulations department health services police department items designed marketed use illegal cannabis drugs section village clerk hereby authorized publish ordinance pamphlet form section ordinance shall full force effect may passage approval publication according law footnotes text ordinance set forth appendix opinion guidelines provide license guidelines items effect paraphernalia accessory thing designed marketed use illegal cannabis drugs paper white paper tobacco oriented paper necessarily designed use illegal cannabis drugs may displayed paper colorful design names oriented use illegal cannabis drugs displayed covered roach clips designed use illegal cannabis drugs therefore covered pipes displayed away proximity nonwhite paper tobacco oriented paper displayed within proximity roach clips literature encouraging illegal use cannabis illegal drugs covered otherwise covered paraphernalia displayed roach clips literature encouraging illegal use cannabis illegal drugs covered ordinance hoffman estates administrative procedure ordinance enacted prior drug paraphernalia ordinance provides interested person may petition adoption interpretive rule petition denied person may place matter agenda appropriate village committee review village attorney indicated interpretive rules adopted respect drug paraphernalia ordinance one yet applied license app facial challenge context means claim law invalid toto therefore incapable valid application steffel thompson evaluating facial challenge state law federal must course consider limiting construction state enforcement agency proffered grayned city rockford making determination evaluate ambiguous well unambiguous scope enactment extent vagueness law affects overbreadth analysis long recognized ambiguous meanings cause citizens steer far wider unlawful zone boundaries forbidden areas clearly marked baggett bullitt quoting speiser randall see grayned supra cf young american mini theatres agueness challenges statutes involve first amendment freedoms must examined light facts case hand mazurie see powell national dairy products one whose conduct statute clearly applies may successfully challenge vagueness parker levy rationale evident sustain challenge complainant must prove enactment vague sense requires person conform conduct imprecise comprehensible normative standard rather sense standard conduct specified coates city cincinnati provision simply core smith goguen flipside explained placed items village considers drug paraphernalia locations near checkout counter point purchase items others small apt shoplifted app flipside assert manner placement motivated part desire communicate information customers flipside also argues ordinance overbroad extend innocent lawful uses items well uses illegal drugs brief appellee argument seems confuse vagueness overbreadth doctrines flipside objecting determine whether ordinance regulates items lawful uses complaining vagueness find claim unpersuasive facial challenge see infra flipside objecting ordinance inhibit innocent uses items found covered ordinance complaining denial substantive due process latter claim obviously lacks merit retailer right sell smoking accessories purchaser right buy use entitled minimal due process protection village presented evidence illegal drug use community app regulation items lawful well unlawful uses irrational means discouraging drug use see exxon governor maryland hostility lower courts drug paraphernalia laws particularly regulating sale items many innocent uses see record revolution city parma vacated remanded may reflect belief measures ineffective stemming illegal drug use perceived defect however defect clarity unlikely event state construed ordinance prohibiting sale pipes whatever description seller corncob pipes complain law unduly vague course object law intended cover items papachristou city jacksonville dictum collecting cases see national dairy products cf smith goguen see joseph seagram sons hostetter mcgowan maryland see barenblatt black warren douglas joined dissenting winters new york see colautti franklin boyce motor lines screws plurality opinion see note doctrine rev see papachristou supra grayned village stipulated purpose ordinance discourage use regulated items app moreover prohibitory stigmatizing effects ordinance clear appeals remarked retailers willing brand sellers drug paraphernalia customers buy items condition signing names addresses register available police proposed register entitled retail record items designed marketed use illegal cannabis drugs record complaint app argument counsel village admitted ordinance tr oral arg district apparently relied principally growing vernacular understanding paraphernalia items therefore separately analyze meaning designed marketed use agree appeals regulation paraphernalia alone provide much warning nature items regulated guidelines explicitly provide white paper may displayed roach clips designed use illegal cannabis drugs therefore covered emphasis added appeals criticized latter definition failing explain roach clip criticism unfounded technical term sufficiently clear meaning drug paraphernalia industry without undue burden flipside easily determine meaning term see american heritage dictionary english language defining roach butt marijuana cigarette lingeman drugs dictionary defining roach roach holder moreover explanation retailer may display certain paper necessarily designed use clarifies ordinance least embraces items necessarily designed use cannabis illegal drugs readily apparent hoffman estates scheme designed use phrase refers physical characteristics items deemed per se fashioned use drugs intentional conduct implicated phrase intent designer patent holder manufacturer whose intent item design absorbed physical attributes structural design finished product brief appellee moreover village president described drug paraphernalia items anufactured purpose marketed purpose app emphasis added american heritage dictionary english language gives following alternative definition head slang one frequent user drugs theoretical possibility village enforce ordinance paper clip placed next rolling stone magazine due process significance unless possibility ripens prosecution appeals also referred potential fourth amendment problems resulting recordkeeping requirement implies customer purchases item designed marketed use illegal cannabis drugs intends use item illegal cannabis drugs implication customer subject police scrutiny even search warrant basis purchase legal item address fourth amendment issues challenge difficult determine whether fourth amendment rights seriously threatened flipside offered evidence concrete threat postenforcement proceeding flipside may attempt demonstrate ordinance employed unconstitutional manner standing raise objection appropriate defer resolution problems showing made justice white concurring judgment agree judgment appeals must reversed however believe necessary discuss overbreadth problem order reach result appeals held ordinance void vagueness discuss problem overbreadth opinion reversed simply erred analysis vagueness problem presented ordinance agree majority facial vagueness challenge economic regulation must demonstrate enactment impermissibly vague applications ante also agree majority statement marketed use standard ordinance sufficiently clear view need go transparently clear particular conduct restricted ordinance ordinance survives facial challenge vagueness grounds technically overbreadth standing doctrine permits parties cases involving first amendment challenges government restrictions noncommercial speech argue regulation invalid effect first amendment rights others presently broadrick oklahoma whether appellee may make use overbreadth doctrine depends first instance whether colorable claim ordinance infringes constitutionally protected noncommercial speech others although appellee claims ordinance effect argument tenuous best left lower courts initial determination accordingly concur judgment reversing decision