New England Accessories Trade Ass'n, Inc. v. City of Nashua

• Citation: 679 F.2d 1
• Decision Date: 24 May 1982
• Docket Number: 81-1668,Nos. 80-1822,s. 80-1822
• Parties: NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC., Kanko, Inc., and Stuart Tulchinsky, Plaintiffs-Appellants, v. CITY OF NASHUA, et al., Defendants-Appellees. NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC., Kanko, Inc., and Stuart Tulchinsky, Plaintiffs-Appellants, v. STATE OF NEW HAMPSHIRE and Gregory H. Smith In His Official Capacity As Attorney General of the State of New Hampshire, Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

679 F.2d 1

NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC., Kanko, Inc., and Stuart Tulchinsky, Plaintiffs-Appellants, v. CITY OF NASHUA, et al., Defendants-Appellees.

NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC., Kanko, Inc., and Stuart Tulchinsky, Plaintiffs-Appellants, v. STATE OF NEW HAMPSHIRE and Gregory H. Smith In His Official

Capacity As Attorney General of the State of New

Hampshire, Defendants-Appellees.

Nos. 80-1822, 81-1668.

United States Court of Appeals,

First Circuit.

Argued March 1, 1982.

Decided May 24, 1982.

James M. Smith, Denver, Colo., with whom Tower, Bean & Crocker, Jaffrey, N. H., was on brief, for plaintiffs-appellants.

H. Philip Howorth, Nashua, N. H., for defendants-appellees City of Nashua, et al.

Martha V. Gordon, Asst. Atty. Gen., Criminal Justice Division, with whom Gregory H. Smith, Atty. Gen., Concord, N. H., was on brief, for the State of New Hampshire, et al.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Appellants, who are the same in both cases, ¹ appeal two decisions of the district court upholding the constitutionality of the drug paraphernalia ordinance of the City of Nashua, New Hampshire, and New Hampshire's drug paraphernalia statute. Although the cases were heard and decided separately, they are identical in many respects. The complaints in both cases allege that the action arises under the first, fourth, eighth, and fourteenth amendments. Each complaint states, "Plaintiffs seek prospective relief under 42 U.S.C. § 1983." And, in both cases, plaintiffs sought preliminary and permanent injunctive relief.

After holding a hearing pursuant to Federal Rule of Civil Procedure 65(a)(2), the district court, in a comprehensive opinion, rejected plaintiffs' constitutional attack on the ordinance. The case involving the state statute, which was enacted subsequent to the ordinance, was heard ten months later. The district court, relying on its opinion in the ordinance case, denied plaintiffs' request for injunctive relief.

We are faced in each case with pre-enforcement facial challenges based on claims that the ordinance and statute are unconstitutionally vague and that they are overbroad in violation of the first amendment guarantee of free speech. Before discussing the statute and ordinance in detail, we think it necessary to outline the contours of our review.

In Village of Hoffman Estates, et al. v. Flipside, Hoffman Estates, Inc., --- U.S. ----, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the Supreme Court considered a pre-enforcement facial challenge to a drug paraphernalia ordinance on the ground that it was unconstitutionally vague and overbroad. Although the ordinance in question was different from the statute and ordinance here in that it imposed licensing requirements for the sale of drug paraphernalia, not prohibitions, the reasoning of the Court as to how a pre-enforcement facial challenge should be handled applies with full vigor to these cases.

In a facial challenge 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.

Id. at ---- - ----, 102 S.Ct. at 1191 (footnotes omitted).

Although both the statute and ordinance are patterned on the Model Drug Paraphernalia Act, ² they are different in significant respects and will be discussed separately.

Following the teaching of Flipside, we turn first to the free speech issue. There are two questions: does it infringe plaintiffs' first amendment rights or the first amendment rights of other parties. Id. at ----, 102 S.Ct. at 1192. The section of the statute allegedly implicating the first amendment provides:

It shall be unlawful for any person to place in any newspaper, magazine, handbill or other publication any advertisement knowing that the purpose of the advertisement when viewed as a whole, is to promote the sale of objects intended for use as drug paraphernalia.

The statute does restrict the right of plaintiffs to advertise; it is a limitation on commercial speech. "The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Central Hudson Gas v. Public Service Commission of New York, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 2349-2350, 65 L.Ed.2d 341 (1980) (citation omitted). Commercial speech does not fall outside the pale of the first amendment merely because it is commercial. See Virginia State Board of Pharmacy, et al. v. Virginia Citizens Consumer Council, Inc., et al., 425 U.S. 748, 758-61, 96 S.Ct. 1817, 1823-1825, 48 L.Ed.2d 346 (1976). And, "speech is not rendered commercial by the mere fact that it relates to an advertisement." Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, et al., 413 U.S. 376, 384, 93 S.Ct. 2553, 2558, 37 L.Ed.2d 669 (1973).

Appellants argue that the first amendment must be invoked because the statute makes it illegal to place an advertisement promoting the sale of drug paraphernalia outside the state, even if the sale of drug paraphernalia is legal in jurisdictions outside the state. They rely on Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1974), which held that the first amendment barred Virginia from prosecuting a person who published advertisements stating that abortions were available in New York. A Virginia statute made it a misdemeanor to encourage or prompt the procuring of an abortion by the sale or circulation of any publication. We do not think the nature of the advertisement in this case and the governmental interests served by its prohibition are comparable with the protected advertisement in Bigelow. It is important to recognize that the statute here, read as a whole, is aimed at conduct that is criminal in all jurisdictions-the ingestion of illegal drugs into the human body. Although the sale of drug paraphernalia is legal in many jurisdictions, the use of them to ingest those drugs on the controlled substances list is part of the crime of "illegal possession." Unlike the prescription drug price statute in Virginia Board of Pharmacy which did not propose illegal transactions, the advertisement proscribed here promotes activity which has been determined to be criminal in all jurisdictions. If New York, or some other state, decided to legalize the sale and use of marijuana, New Hampshire would have greater difficulty under Bigelow prohibiting an advertisement suggesting that the Big Apple was the place to get high on marijuana. But that is not the situation before us. "For commercial speech to come within that provision (the first amendment), it at least must concern lawful activity and not be misleading." Central Hudson Gas v. Service Comm'n, 447 U.S. at 566, 100 S.Ct. at 2351. See Flipside, --- U.S. at ----, 102 S.Ct. at 1192. As was pointed out by the Eighth Circuit in a similar case, the statute forbids only advertisements which "promote the sale of objects designed or intended for use as drug paraphernalia. The statute does not reach speech which merely glorifies the drug culture without direct invitation to purchase specific items." Casbah, Inc. v. Thone, 651 F.2d 551, 563 (8th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982), reh'g denied, --- U.S. ----, 102 S.Ct. 2023, 72 L.Ed.2d ---- (1982). It is also important to note that, under the statute, actual knowledge of the purpose of the advertisement is required. This is a further limitation on the scope of the prohibition.

We conclude that the statute does not unconstitutionally impinge on the first amendment rights of the plaintiffs. The question of whether the statute is unconstitutionally overbroad because it inhibits the first amendment rights or others is irrelevant "because the overbreadth doctrine does not apply to commercial speech." Flipside, --- U.S. at ----, 102 S.Ct. at 1192.

We now turn to the section of the ordinance prohibiting advertising:

It is unlawful for any person to place 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. (emphasis added).

The wording of the ordinance raises potentially serious first amendment problems because protected speech might be implicated. As the Sixth Circuit has pointed out, the use of the words "in part" could result in the suppressing of speech urging the reform of drug laws or espousing the drug culture. Record Revolution No. 6, Inc. v. City of Parma, et al., 638 F.2d 916, 937 (6th Cir. 1980), vacated and remanded, 451 U.S. 1013, 101 S.Ct. 2998, 69 L.Ed.2d 384 (1981). In addition, the "reasonably should know" language could leave the interpretation of what is forbidden up to the subjective opinion of the enforcing officer and allow enforcement against protected speech.

The posture of the case, however, makes us hesitate to declare it unconstitutional. The Supreme Court has emphasized that overbreadth facial challenges to the constitutionality of a state law should prevail only in rare circumstances.

It remains a "matter of no little difficulty" to determine when a law may properly be held void on its face and when "such summary action" is inappropriate. Coates v. City of Cincinnati, 402 U.S. 611, 617 (91 S.Ct. 1686, 1690, 29 L.Ed.2d 214) (1971) (opinion of...