## Facts

- A village enacted an ordinance requiring any business to obtain a special license if it sold items “designed or marketed for use with illegal cannabis or drugs.”
- The licensing scheme required sellers to keep purchaser names and addresses for covered items and to make those records available for inspection.
- Implementing guidelines identified covered examples such as “roach clips,” pipes, and other drug-use-related items; coverage turned on objective design features and marketing (labels, packaging, advertising).
- A retail shop selling records, novelty items, “roach clips,” and specially designed marijuana pipes was notified it might be violating the ordinance.
- The shop sued for declaratory and injunctive relief and damages, claiming the ordinance was facially vague and overbroad under the First and Fourteenth Amendments, including by potentially chilling sale of books and magazines.
- The district court upheld the ordinance; the court of appeals reversed on facial vagueness grounds.

## Issues

1. Whether the ordinance is facially overbroad under the First Amendment because it burdens protected expression.
2. Whether the ordinance is unconstitutionally vague on its face under due process, including the phrases “designed for use” and “marketed for use,” and whether it invites arbitrary enforcement.
3. What standards govern facial challenges alleging overbreadth and vagueness, particularly for economic regulation with only civil penalties.

## Decision

- The Supreme Court reversed the court of appeals and upheld the ordinance.
- The ordinance was not facially overbroad because it primarily regulated commercial marketing connected to illegal drug use, and overbreadth doctrine does not apply to commercial speech.
- The ordinance was not facially vague; it was reasonably clear as applied to the shop’s sales of items plainly covered (e.g., roach clips and marijuana pipes).
- The Court treated the law as economic regulation with civil penalties, warranting a less demanding vagueness inquiry than criminal prohibitions.

## Legal Principles

- In facial challenges asserting overbreadth and vagueness, courts first ask whether the law reaches a substantial amount of constitutionally protected conduct; if not, the overbreadth claim fails.
- The overbreadth doctrine does not apply to commercial speech, including commercial promotion of illegal transactions.
- A facial vagueness challenge succeeds only if the enactment is impermissibly vague in all of its applications.
- A plaintiff whose conduct is clearly proscribed cannot base a facial vagueness challenge on hypothetical uncertain applications affecting others.
- A scienter requirement or scienter-like focus (e.g., on design or marketing indicating illicit use) can reduce vagueness by improving notice and limiting enforcement discretion.
- Courts evaluating facial challenges consider narrowing constructions and administrative guidelines that clarify scope.

## Conclusion

The Court sustained a licensing and recordkeeping ordinance for sellers of items designed or marketed for illegal drug use, holding that overbreadth doctrine does not extend to commercial speech and that facial vagueness requires showing the law is vague in all applications, which was not met given the ordinance’s clear coverage of the shop’s conduct.


Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)