In the 1981 case Village of Hoffman Estates et al. v. The Flipside, Hoffman Estates, Inc., the U.S. Supreme Court ruled on a local ordinance that required businesses to obtain a license and keep records for sales of items that could be used with illegal drugs. The Flipside, a record store in Hoffman Estates, Illinois which also sold paraphernalia often associated with drug use challenged this law as unconstitutionally vague and overbroad under the First Amendment and Due Process Clause of the Fourteenth Amendment. However, the Supreme Court upheld the ordinance by an 8-1 vote stating it was neither vague nor overbroad because it clearly defined what items were covered under its provisions and did not infringe upon constitutionally protected speech or conduct.

In the dissenting opinion for Village of Hoffman Estates et al. v. The Flipside, Hoffman Estates, Inc., Justice Thurgood Marshall argued that the majority's decision to uphold a local ordinance regulating drug paraphernalia sales was flawed because it did not adequately consider First Amendment implications. He contended that the law could potentially infringe on protected speech by prohibiting advertising or display of certain items deemed as "paraphernalia." Furthermore, he criticized the majority's conclusion that vagueness in this context is acceptable due to its civil nature and non-criminal penalties; he believed such an approach would allow municipalities too much discretion in determining what constitutes illegal behavior under their ordinances. Lastly, Justice Marshall expressed concern over potential discriminatory enforcement against businesses catering to particular lifestyles or subcultures.