The justices unanimously upheld an ordinance passed by a Chicago suburb that imposed licensing requirements on the sale of drug paraphernalia by a local record store.

Justice Thurgood Marshall wrote for the Supreme Court that the village's ordinance was neither vague nor overbroad since it clearly defined the items affected and only explicitly prohibited marketing that alluded to their use in consuming illegal controlled substances.

Applicants were required to file an affidavit certifying that no one employed by the business had ever been convicted of a drug-related offense and to keep a record of the name and address of anyone purchasing items covered by the law, which the village police could inspect at any time.

Instead it removed 80 items from its shelves and filed suit in federal court, alleging the ordinance was "vague, overbroad, capable of being arbitrarily enforced, and not reasonably related to any legitimate governmental objective of the village in controlling drug abuse."

After reviewing the existing law on the subject of vagueness, starting with the Supreme Court's decision in Grayned v. City of Rockford[13] eight years earlier, Leighton considered Hoffman Estates' ordinance.

"Plainly, by no construction of the Constitution has the plaintiff any right to sell, either in the village of Hoffman Estates or anywhere else, any 'items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs ... '"[17] Lastly, Leighton considered the Flipside's Fourteenth Amendment claims.

A pair of circuit judges, Robert Arthur Sprecher and Harlington Wood Jr., were joined by Henry George Templar of the District of Kansas to form a panel.

It recognized that paraphernalia was legal to sell, "[y]et one of the purposes of the ordinance obviously must be to do indirectly what it claims it cannot do directly—to effectively ban the sale of a broad class of items, some of which may be used with illegal drugs."

[26] They had missed the point of that case, where the Court had struck down Timothy Leary's conviction for smuggling marijuana because it could not be rationally presumed, as the Marihuana Tax Act of 1937 did, that someone possessing the drug knew it came from outside the United States.

He pointed to a Georgia case brought by two stores had had their business licenses revoked for selling alleged paraphernalia, where the judge had found, among other vague aspects of the law in question, that "conflicting lifestyles and political views suffuse the decision maker's perception of what buyers will do with the product.

Amicus curiae briefs on its behalf, urging reversal, were filed by the attorneys general of 21 states, the village of Wilmette, Illinois (another Chicago suburb), and Community Action Against Drug Abuse.

"[33] Pritzker said the village had "attempted to narrow the question so that the issue presented is any item, effect, thing which is designed or marketed for use with illegal drugs, unconstitutionally vague."

"I think the only issue is, if a brass water pipe is lawful, like Pier 1 sells and like many tourists who come back from the east [buy], why is a blue one unlawful"[33] Could the same ordinance cover hypodermic needles, Pritzker was asked.

While there were, he admitted, ambiguous terms in the guidelines and ordinances, he found the "designed for use" standard "sufficiently clear to cover at least some of the items that Flipside sold," in particular roach clips[note 2] which have no legal use.

And furthermore, it was likely that "the village w[ould] take no further steps to minimize the dangers of arbitrary enforcement" since it could adopt administrative regulations that could narrow or clarify the vague terms in the ordinance.

Court challenges continued, but eventually sales of drug paraphernalia became less widespread, as many record stores and small retailers felt they could no longer sell such merchandise profitably under the restrictions.

The Levases further argued that, by defining coke spoons and marijuana pipes in great detail, the village had imposed strict liability not present in the Hoffman Estates ordinance, making the objects illegal per se without regard to lawful uses.

Where plaintiffs in those, like Hoffman, had attacked the ordinances for lacking an exact definition of the various items, Antioch's went into great detail, defining coke spoons and pot pipes, for instance, as those having bowls below a certain size and thus optimal for illegal use.

"In the first place, making the sale of cocaine spoons or marijuana or hashish pipes per se illegal may well not offend the Constitution ... At most, there is an outside chance that the provisions might be found to violate the Due Process Clause."

[53] In conclusion, Cummings held the Antioch ordinance constitutional provided three conditions were met: that it was construed to preclude convictions based on transferred intent, that it required the seller or possessor have knowledge of intended illegal use rather than "negligent ignorance", and that strict-liability enforcement be limited.

"[I]n deciding what means to employ," he wrote, "[West Allis City Council] can rely on actual or hypothetical facts, and can attack only certain aspects of a problem without having to justify its failure to fashion a comprehensive solution."

He approvingly quoted the words of former Supreme Court justice William O. Douglas to similar effect: "[T]he law need not be in every respect logically consistent with its aims to be constitutional.

"[55] In Hoffman Estates, Pell began his dissent, "the Court seemed to put to rest the idea that municipalities could not, in an endeavor to retard the growing menace of drug abuse, legislate against the activities of the so-called head shops without running afoul of Constitutional prohibitions."

[61] Judge Sam Sparks issued a preliminary injunction barring the city from enforcing the ordinance after finding it imposed a higher fine than state law allowed and lacking in a review procedure.

Between that time and trial a year later, the city issued several sets of guidelines on the "necessary steps" a business must take to prevent smoking within its premises, a phrase which had been attacked by the plaintiffs as particularly vague.

She held it significant that the guidelines had been drawn up by the city in response to business concerns, giving it a point of similarity with the Hoffman Estates ordinance and the Court's holding that the ability to clarify justified a less strict vagueness standard.

And some of those plaintiffs had not only received multiple notices of violation but seemed to be trying to find loopholes in it, such as making patrons sign written forms confirming that they had been instructed not to smoke inside but otherwise not discouraging them from doing so, and putting empty candleholders on tables instead of ashtrays.

"[67] In dismissing The Flipside's overbreadth claims, Regnier notes, the Court's analysis was particularly deficient due to an oversight on the record store's part: [It] assumed that all drug-related literature located near paraphernalia encouraged the use of illegal drugs.

This result is the kind of "chilling" effect that the overbreadth doctrine is designed to remedy, but, unfortunately, Flipside never raised the political speech issue, so the Court did not address it.

He points to subsequent prosecutions such as Operation Pipe Dreams in the early 20th century, in which comedian Tommy Chong wound up serving several months in prison for his supposedly promotional role in his son's bong-dealing business after his past drug humor was introduced at his sentencing, as demonstrating the chilling effect originally feared by Flipside and the other paraphernalia dealers.