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PENNSYLVANIA ACCESSORIES TRADE ASSN. v. THORNBURGH

June 22, 1983

PENNSYLVANIA ACCESSORIES TRADE ASSOCIATION, INC.; LAZY J, LTD., A Pennsylvania Corporation; QUICKDRAW ACCESSORIES, INC., a Pennsylvania Corporation; RECORD OUTLET; MERCHANDISING SERVICE OF AMERICA, INC., A Pennsylvania Corporation; U.B.C. GRAIN COMPANY, INC., A Pennsylvania Corporation; DAVID A. TALMAS, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; JAMES A. BAUER, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; LENWOOD STEPHENS, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; MARTIN PAUL MILLMOND, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; and WAYNE A. DEAKIN, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc., Plaintiffs
v.
RICHARD THORNBURGH, Governor of the Commonwealth of Pennsylvania and LeROY S. ZIMMERMAN, Attorney General of the Commonwealth of Pennsylvania, Defendants


Herman


The opinion of the court was delivered by: HERMAN

I. INTRODUCTION AND BACKGROUND

Drug paraphernalia statutes and ordinances are a response to the development of an extensive multi-million dollar industry that promotes and glamorizes the illegal use of drugs through the manufacture and sale of implements for preparing and using illicit drugs, primarily marijuana and cocaine. See Hearings Before the House Select Comm. on Narcotics Abuse And Control, 96th Cong., 1st Sess. (November 1, 1979) (statement of Dep. Ass't. Atty. Gen'l. Irvin B. Nathan). See also LEVAS AND LEVAS v. VILLAGE OF ANTIOCH, 684 F.2d 446, 449 (7th Cir. 1982); TOBACCO ACCESSORIES & NOVELTY CRAFTSMEN ASSOC. v. TREEN, 681 F.2d 378, 380 (5th Cir. 1982). The Model Drug Paraphernalia Act (hereinafter referred to as "The Model Act"), drafted by the Drug Enforcement Administration of the United States Department of Justice at the request of the Drug Policy Office of the President's Domestic Policy Council, RECORD REVOLUTION NO. 6, INC. v. CITY OF PARMA, 638 F.2d 916, 919 (6th Cir. 1980), vacated and remanded, 456 U.S. 968, 102 S. Ct. 2227, 72 L. Ed. 2d 840 (1982), represents an attempt to write a statute that would be broad enough to deal with the problem effectively, but which would avoid the constitutional infirmities that resulted in successful challenges to various state and local drug paraphernalia laws. STOIANOFF v. MONTANA, 695 F.2d 1214, 1217 (9th Cir. 1983); LEVAS, 684 F.2d at 449; TOBACCO ACCESSORIES, 681 F.2d at 380 & n.3; CASBAH, INC. v. THONE, 651 F.2d 551, 555 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 71 L. Ed. 2d 874, 102 S. Ct. 1642 (1982). Pennsylvania's Drug Paraphernalia Act of December 4, 1980, P.L. 634, No. 186, codified at 35 P.S. §§ 780-102(b), 780-113(a)(32)-(34), & 780-113(i) (Purdon Supp. 1983) (hereinafter referred to as "Act 186") adopts verbatim the language of the Model Act. See Appendix.

 Act 186 was to become effective as an amendment to Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101, et seq., on February 2, 1981. Prior to the effective date, on January 26, 1981, Plaintiffs *fn1" filed this action attacking the statute as facially unconstitutional. After a hearing on January 30, 1981, this court granted Plaintiffs' application for a temporary restraining order. A hearing on Plaintiffs' request for a preliminary injunction was held on February 18, 1981. On February 27, 1981, we enjoined Defendants Richard Thornburgh *fn2" and LeRoy Zimmerman *fn3" from enforcing Act 186 until a decision could be rendered on the merits of Plaintiffs' constitutional challenge. The Parties then proceeded to conduct discovery.

 On March 3, 1982, the United States Supreme Court handed down its unanimous decision in VILLAGE OF HOFFMAN ESTATES v. FLIPSIDE, 455 U.S. 489, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982). Although the ordinance in FLIPSIDE was not patterned after the Model Act, the lower courts have considered pre-enforcement, facial challenges to versions of the Model Act in light of the analytical framework set forth in FLIPSIDE. But see B. Gerson, "Head Shops: A Legal Haze," NAT'L L.J. at 8 (Aug. 23, 1982) (FLIPSIDE provides little guidance). To date, nine circuit courts have upheld statutes based on the Model Act. In seven of the circuits the cases were decided after the Supreme Court rendered its decision in FLIPSIDE.4 Consequently, on November 2, 1982, Defendants moved for summary judgment on the basis that Plaintiffs' facial challenge involves only the legal question of whether or not Act 186 conflicts with the United States Constitution, which question Defendants assert should be resolved in their favor. Supporting and opposing memoranda were duly filed. We held oral argument on March 28, 1983. After careful review of the extensive case law in this area, the briefs and arguments of counsel, we now grant Defendants' motion for summary judgment for the reasons set forth below.

 II. DISCUSSION

 A. Overbreadth and Vagueness

 The Supreme Court in FLIPSIDE enunciated the following analysis to be used in resolving facial challenges to the overbreadth and vagueness of a law:

 
a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.

 455 U.S. at 494-95. The Supreme Court also noted that in evaluating a state law a federal court must consider any limiting construction that a state court or enforcement agency has proffered. Id. at 494 n.5.

 We will follow this scheme in our examination of Act 186. The volume of recent case law in which versions of the Model Act have been subjected to scrutiny for overbreadth and vagueness, and upheld, *fn5" makes our task an easier one. We will not repeat the analysis, therefore, with the same depth of detail that appears in other discussions. We will, however, attempt to highlight those areas in which Plaintiffs claim this case is distinguishable from decisions adverse to their position by the various appellate courts.

 1. Overbreadth

 In considering an overbreadth challenge to a statute, the concern is not with a law's uncertainty, but with its potential for punishing constitutionally protected conduct. "A law is facially overbroad if it does not aim specifically at evils within the allowable area of [government] control, but . . . sweeps within its ambit other activities that constitute an exercise of constitutionally protected rights." TOBACCO ACCESSORIES & NOVELTY CRAFTSMEN ASSOC. v. TREEN, 681 F.2d 378, 382 (5th Cir. 1982), quoting THORNHILL v. ALABAMA, 310 U.S. 88, 97, 84 L. Ed. 1093, 60 S. Ct. 736 (1940). The concepts of vagueness and overbreadth are interrelated, however. The Supreme Court has recognized that ambiguous meanings cause citizens to "steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked." BAGGETT v. BULLITT, 377 U.S. 360, 372, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964), quoting SPEISER v. RANDALL, 357 U.S. 513, 526, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958). Thus, a court should evaluate the ambiguous as well as the unambiguous scope of the enactment to determine if it is overbroad. FLIPSIDE, 455 U.S. at 494 n.6.

 Plaintiffs in this case complain that Act 186 is overbroad because it inhibits speech encouraging change in the marijuana laws. They point to the provision in the definition of drug paraphernalia in which the court and law enforcement officials are directed to consider the following factors as circumstantial evidence that an item is drug paraphernalia:

 
statements by an owner or by anyone in control of the object concerning its use . . . descriptive materials accompanying the object which explain or depict its use . . . the manner in which the object is displayed for sale . . . expert testimony concerning its use.

 35 P.S. § 780-102(b). We fail to see the relationship between "statements," "descriptive materials," or "expert testimony" concerning an object's use and expressions of disagreement with the current drug laws. The only factor that might possibly implicate such expressions would be "the manner in which the object is displayed for sale." The context in which the phrase appears, however, indicates that it was intended to apply to display relating to the use of the object, and not to display in proximity to expressive materials legitimately encouraging the legalization of marijuana. Moreover, this provision does not, by its terms, directly prohibit or otherwise regulate literature advocating change in the drug laws. A statute that imposes indirect restrictions on speech is not unconstitutionally overbroad unless there is a substantial potential for its application to protected speech. The fact that some unconstitutional applications of the law can be imagined is insufficient to invalidate the statute on overbreadth grounds. BROADRICK v. OKLAHOMA, 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). See also FLIPSIDE, 455 U.S. at 496; THE GENERAL STORES, INC. v. BINGMAN, 695 F.2d 502, 504 (10th Cir. 1982).

 Plaintiffs also argue that consideration by the police of "descriptive materials which explain or depict its [the object's] use" or "the manner in which the object is displayed" will inhibit symbolic speech. Plaintiffs contend that they will be forced to refrain from making symbolic statements in support of repealing the marijuana laws through the sale or manufacture of items bearing drug-related designs, logos or slogans. The Supreme Court addressed this argument in FLIPSIDE and rejected it:

 
Although drug-related designs or names on cigarette papers may subject those items to regulation, the village does not restrict speech as such, but simply regulates the commercial marketing of items that the labels reveal may be used for an illicit purpose. The scope of the ordinance therefore does not embrace noncommercial speech.

 FLIPSIDE, 455 U.S. at 496. Commercial speech is entitled to First Amendment protection, VIRGINIA BOARD OF PHARMACY v. VIRGINIA CITIZENS CONSUMER COUNSEL, 425 U.S. 748, 761-62, 96 S. Ct. 1817, 1825, 48 L. Ed. 2d 346 (1976), but commercial speech does not trigger as high a level of judicial scrutiny as other varieties of expression. OHRALIK v. OHIO STATE BAR ASSOC., 436 U.S. 447, 456 & 457, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978). In FLIPSIDE, the Supreme Court summarily dismissed the commercial speech interests of the plaintiff retailer: *fn6"

 
Insofar as any commercial speech interest is implicated here, it is only the attenuated interest in displaying and marketing merchandise in the manner that the retailer desires. We doubt that the village's restriction on the manner of marketing appreciably limits Flipside's communication of information -- with one obvious and telling exception. The ordinance is expressly directed at commercial activity promoting or encouraging illegal drug use. If that activity is deemed "speech," then it is speech proposing an illegal transaction which a government may regulate or ban entirely.

 FLIPSIDE, 455 U.S. at 496 (citations omitted).

 We see no reason why the same analysis should not apply in this case, and equally as well to the manufacturing plaintiffs as to the retailer plaintiffs. Furthermore, even if we were to treat the sale and manufacture of items bearing drug-related designs as noncommercial speech, it would constitute symbolic speech, that is, speech mixed with conduct. When speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. UNITED STATES v. O'BRIEN, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968) (draft card burning). The regulation of drug paraphernalia furthers the important state interest in discouraging the unauthorized use of addictive drugs and other substances determined to be deleterious to the health and well-being of its citizens. The regulation is not directed at the suppression of free expression, and the effect on the expression of ideas is minimal. Id. at 377. See also THE GENERAL STORES, INC. v. BINGAMAN, 695 F.2d 502, 504 (10th Cir. 1982).

 Section 2 of Act 186, in contrast, directly restricts speech by prohibiting

 
The placing in any newspaper, magazine, handbill or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement in whole or in part is to promote the sale of objects designed or intended for use as drug paraphernalia.

 35 P.S. § 780-113(a)(34). Plaintiffs have not specifically challenged the advertising ban in their brief opposing summary judgment, but in Paragraph 27 of their Complaint they allege that "the challenged Act has a chilling effect on the free expression of the Plaintiffs in that the Plaintiffs are unable to determine, based on the guidelines in the Act, what statements in their advertising materials are prohibited." *fn7"

 Since the ordinance attacked in FLIPSIDE did not contain an advertising ban, we do not have the guidance of the Supreme Court on this issue. A number of circuit courts, however, have addressed the question. See KANSAS RETAIL TRADE CO-OP v. STEPHEN, 695 F.2d 1343, 1347 (10th Cir. 1982); NEW ENGLAND ACCESSORIES TRADE ASSOC. v. CITY OF NASHUA, 679 F.2d 1, 3-5 (1st Cir. 1982); FLORIDA BUSINESSMEN FOR FREE ENTERPRISE v. CITY OF HOLLYWOOD, 673 F.2d 1213, 1217 (11th Cir. 1982); CASBAH, INC. v. THONE, 651 F.2d 551, 563-64 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S. Ct. 1642, 71 L. Ed. 2d 874 (1982); RECORD REVOLUTION NO. 6, INC. v. CITY OF PARMA, 638 F.2d 916, 936-37 (6th Cir. 1980), vacated and remanded, 456 U.S. 968, 102 S. Ct. 2227, 72 L. Ed. 2d 840 (1982). With the exception of the RECORD REVOLUTION case, the advertising provision passed constitutional muster in each instance.

 A careful reading of the provision reveals that, like the factors listed in the definitional section, this prohibition is directed only at commercial speech. It forbids " advertisement[s] " that "promote the sale of objects designed or intended for use as drug paraphernalia." (emphasis added). By its terms, the statute does not address advertisements glorifying the drug culture or advocating reform of the drug laws, without an invitation to purchase proscribed items. FLORIDA BUSINESSMEN, 673 F.2d at 1217; CASBAH, 651 F.2d at 563. But see RECORD REVOLUTION, 638 F.2d at 937. Thus, the forbidden speech is commercial speech proposing an illegal transaction. Such speech is not protected by the First Amendment. CENTRAL HUDSON GAS AND ELECTRIC CORP. v. PUBLIC SERVICE COMMISSION, 447 U.S. 557, 564, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980). *fn8"

 2. Vagueness

 The analytical framework established by the Supreme Court in FLIPSIDE dictates that after consideration of the overbreadth challenge, "the court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, *fn9" should uphold the challenge only if the enactment is impermissibly vague in all of its applications. . . . A court should . . . examine the complainant's conduct before analyzing other hypothetical applications of the law." FLIPSIDE, 455 U.S. at 494-95. Defendants have not urged that particular conduct of Plaintiffs is clearly proscribed by Act 186. *fn10" Consequently, we must proceed directly to the test for facial vagueness.

 In FLIPSIDE, the Court applied the standards enunciated in GRAYNED v. CITY OF ROCKFORD, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972):

 
First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.

 Id. at 108 (footnotes omitted).

 In regard to the first prong of the vagueness test, the "notice" prong, Plaintiffs allege in a general fashion that they are unable to understand the definition of "drug paraphernalia" contained in Act 186. See Complaint, paras. 19-24. The definition in the Act is tri-partite. First, drug paraphernalia is generally defined as "all equipment, products and materials of any kind which are used, intended for use or designed for use . . ." with a controlled substance. Second, it enumerates twelve groups of items as examples of drug paraphernalia. Last, the definition specifies thirteen factors that should be considered when determining whether an item is to be considered drug paraphernalia. See 35 P.S. § 780-102(b). In Section 2 of the Act, the statute bans the use of, possession with intent to use, delivery of, possession with intent to deliver, or manufacture with intent to deliver drug paraphernalia, *fn11" as defined in Section 1.

 Facial vagueness occurs when a law contains no core meaning that can be reasonably understood by the person of ordinary intelligence. BRACHE v. COUNTY OF WESTCHESTER, 658 F.2d 47, 50-51 (2d Cir. 1981), cert. denied, 455 U.S. 1005, 71 L. Ed. 2d 874, 102 S. Ct. 1643 (1982). "A finding of unconstitutional vagueness cannot be based on uncertainty at the margins, or on a parade of bizarre hypothetical cases: problems of that order can be resolved in challenges as applied." LEVAS AND LEVAS v. VILLAGE OF ANTIOCH, 684 F.2d 446, 451 (7th Cir. 1982) (citations omitted). Act 186 is not a model of precision, and we acknowledge some difficulties with portions of the law, but a fair reading of the statute as a whole reveals a core of clearly prohibited conduct. The Act makes criminal (1) the use of tangible items of any kind with prohibited drugs; (2) the delivery of items, whether or not they have other lawful uses, with the intent that they will be used with prohibited drugs; and (3) the manufacture of items for use with prohibited drugs. The Plaintiffs do not complain that they do not have notice of the proscribed "controlled substances." They are enumerated elsewhere in Pennsylvania's Controlled Substance, Drug Device and Cosmetic Act. See 35 P.S. § 780-104. The Act includes a specific intent requirement, Cf. NEW ENGLAND ACCESSORIES TRADE ASSOC. v. CITY OF NASHUA, 679 F.2d 1, 7 (1st Cir. 1982) (ordinance did not require proof of ...


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