Jack Fruth: Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.

102 S.Ct. 1186, 71 L.Ed.2d. 362


Whether the Village of Hoffman Estates’ ordinance regulating the sale of products displayed with or in proximity to literature encouraging illegal drugs is overbroad or void for vagueness?

On February 20, 1978 the village of Hoffman Estates, Cooke County, Illinois (village) enacted an ordinance regulating items “designed or marketed for use with illegal cannabis or drugs.” It included a provision that required an application to sell “any item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs.” The ordinance also regulated items within proximity of “literature encouraging illegal use of cannabis or illegal drugs.”

Flipside, Hoffman Estates, Inc. (Flipside), a merchant in the village, filed a lawsuit in the District Court for the Northern District of Illinois alleging the ordinance was unconstitutionally vague and overbroad and sought a preliminary injunction against the village. The District Court, after hearing arguments, issued an opinion upholding the constitutionality of the ordinance and denying the injunction. The Court of Appeals reversed on the grounds that the ordinance was unconstitutionally vague on its face.


First a court must determine if the enactment reaches a substantial amount of constitutionally protected speech to be overly broad. Then The Court looks at vagueness, since a law can satisfy the overbreadth test and still be unconstitutionally vague. On the vagueness challenge the court uses the standards outlined in Grayned v. City of RockfordGrayned lays out the two problems with overly vague laws: the ability for an average person to know what is prohibited with fair warning, and the delegation of basic policy matters to individual judges or police officers making the outcomes subjective. The law must be vague in all of its applications.


The Court noted that the ordinance, while regulating the sale of items within the proximity to “literature encouraging illegal use of cannabis or illegal drugs,” it did not regulate the literature itself, nor did it appreciably limit Flipside’s communication of information. The ordinance did not restrict the speech of creators of the literature nor Flipside’s; it only limited items which may be used for illegal purposes, and thus is not overbroad.

In evaluating the ordinance’s vagueness applying the standards in Grayned, The Court held that the ordinance was not vague and sufficiently clear as applied to Flipside. Focusing on the language “designed for use” and “marketed for use,” The Court held that in either case that Flipside sold at least some items that applied, thus the ordinance could not be vague in all applications.


Justice Marshall wrote the opinion, reversing The Court of Appeals decision and holding that the ordinance was not overly broad or vague.

Justice White wrote a concurring opinion stating that since The Court of Appeals only held that the ordinance was void for vagueness there was no need to discuss overbreadth, and Justice Stevens took no part in the case.

Jack Fruth
New York Law School | + posts

Jack Fruth is a first-year law student, interested in the legacy market, Delta-8 related issues and cannabis law at New York Law School

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