The Supreme Court yesterday gave state and local governments wide latitude to regulate and even ban the sale of drug paraphernalia in "head shops" that have sprung up all over the country.
The 8-to-0 ruling should provide legislators the model they have been seeking to withstand well-financed and often successful court challenges from the $3 billion-a-year paraphernalia industry.
The decision, laced with references to a drug-oriented magazine called "High Times," rolling paper and other drug accessories, upheld the constitutionality of an ordinance in Hoffman Estates, Ill., which banned the sale of such accessories to minors, required all purchasers to sign a roster for police inspection and subjected the local head shop to licensing requirements and fines for violations.
The Hoffman Estates law, like dozens of similar ordinances, had been struck down by a federal appeals court, partly on grounds that its definition of drug paraphernalia was unconstitutionally vague, making it too difficult to determine what was legal and what was illegal.
But Justice Thurgood Marshall, writing for the court (Justice John Paul Stevens did not participate), said the head-shop operators know full well the meaning of words like "roach clip." If not, he said, they could find out "without undue burden" by consulting one American Heritage dictionary definition of roach: "the butt of a marijuana cigarette."
The ruling will be particularly helpful to 21 states, including Maryland and Virginia, that enacted anti-paraphernalia laws using the U.S. Drug Enforcement Administration's model. The Hoffman Estates ordinance included definitions from that model.
"The handwriting is on the wall," said a jubilant William M. Lenck, chief counsel for the DEA. "We now think the paraphernalia industry may be out of court and out of business."
Trustees of Hoffman Estates, population 38,000 about 25 miles northwest of Chicago, enacted a paraphernalia ordinance in 1978 after a head shop opened in a record store in a shopping center. The record store, Flip Side, carried the usual array of drug-oriented accessories: roach clips to hold marijuana cigarettes, bongs or water pipes for smoking, decorative rolling paper and a variety of drug publications, including "High Times."
Village officials believed that the shop could lure teen-agers into drug use. They were especially concerned by the shop's proximity to a pizza parlor, movie theater and other teen-age hangouts.
Flip Side stopped selling many of the disputed products and then sued, charging among other things that the definitions in the law were unconstitutionally vague. Its targets were "any item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs." Its guidelines said that "marketed for use" meant displayed in conjunction with pro-drug literature, like "High Times."
The high court yesterday reversed a Seventh U.S. Circuit Court of Appeals ruling that favored Flip Side.
First, Justice Marshall rejected Flip Side's contention that the sale of drug paraphernalia is protected by free-speech guarantees in the Constitution. "The ordinance is expressly directed at commercial activity promoting or encouraging illegal drug use," he said. "If that activity is deemed 'speech,' then it is speech proposing an illegal transaction, which a government may regulate or ban entirely."
Because the ordinance does not invade constitutional rights, he said, and is only "quasi-criminal" in its penalties, the court need not apply a strict test to determine whether it is too broad or too vague.
Citing the dictionary definition of "roach clip," he said the language of the ordinance was sufficiently clear to be understood by the owners of Flip Side.
Flip Side also knows what it means to market something for use with drugs, Marshall said. "Flip Side displayed the magazine 'High Times' and books entitled 'Marijuana Grower's Guide,' 'Children's Garden of Grass,' and 'The Pleasures of Cocaine,' physically close to pipes and colored rolling paper," he said.
"...The theoretical possibility that the village will enforce its ordinance against a paper clip placed next to Rolling Stone magazine," as attorneys for the record shop had argued, can be considered if and when it occurs, he said.
Marshall noted that other constitutional objections were raised to the police roster of paraphernalia purchasers. The court, he said, does not judge those objections because Flip Side "offered no evidence of a concrete threat."
The hostility of some lower courts to drug paraphernalia laws "may reflect a belief that these measures are ineffective for stemming illegal drug use," Marshall wrote, but "whether these laws are wise or effective is not, of course, the province of this court."
Justice Byron R. White agreed with the judgment but said Marshall went further than necessary. Stevens' non-participation was not explained.