Washington Mercantile Association, a Washington Nonprofit Corporation v. Donald H. Williams

At issue here is the constitutionality of a state’s ban on advertisements for the sale of drug paraphernalia when the sale of that paraphernalia is illegal in the regulating state. The district court ruled that the advertising ban unconstitutionally inhibits speech protected by the First Amendment. U.S. Const, amend. I. The court enjoined the enforcement of the statute and the interested state officials appeal.

BACKGROUND

Appellees, merchants and publishers of a periodical, sued in 1981 for declaratory and injunctive relief from enforcement of Washington’s anti-drug paraphernalia law. While the action was pending, this court considered a similar challenge to Montana’s anti-drug paraphernalia law, Stoianoff v. State of Montana, 695 F.2d 1214 (9th Cir. 1983). That act is virtually identical to that of Washington, except that only Montana prohibits the possession of paraphernalia. Compare Mont.Code Ann. §§ 45-10-101 to -107 (1983) with Wash.Rev.Code §§ 69.50.-102, .412, 505 (1983). Both are patterned closely after the Model Drug Paraphernalia Act authored by the Drug Enforcement Administration of the United States Department of Justice.

The district court in Stoianoff held that…