651 F.2d 551
The CASBAH, INC.; The Disc Counter, Inc.; and Jeff Ferber,
d/b/a H & D Sales; Greg Hasselhorst, d/b/a Euphoria; Eric
Listou, d/b/a Joint Venture Novelty Shop, Pipe Dream, Inc.;
Dennis Robinson, d/b/a The Joynt, Appellants,
v.
Charles THONE, Governor for the State of Nebraska; Paul
Douglas, Attorney General for the State of Nebraska; Elmer
Kohmepsher, Colonel in Charge of the Nebraska State Patrol;
Donald L. Knowles, County Attorney for Douglas County,
Nebraska, Appellees.
The CASBAH, INC.; The Disc Counter, Inc.; and Jeff Ferber,
d/b/a H & D Sales; Greg Hasselhorst, d/b/a Euphoria; Eric
Listou, d/b/a Joint Venture Novelty Shop, Pipe Dream, Inc.;
Dennis Robinson, d/b/a The Joynt, Appellees,
v.
Charles THONE, Governor for the State of Nebraska; Paul
Douglas, Attorney General for the State of Nebraska; Elmer
Kohmepsher, Colonel in Charge of the Nebraska State Patrol;
Donald L. Knowles, County Attorney for Douglas County,
Nebraska, Appellants.
Nos. 80-1925, 80-2033.
United States Court of Appeals,
Eighth Circuit.
Submitted Nov. 14, 1980.
Decided June 8, 1981.
Rehearing and Rehearing En Banc Denied July 9, 1981.
Donald B. Fiedler, Omaha, Neb., for plaintiffs-appellants.
Marion Yoder, Nebraska Civil Liberties Union, Lincoln, Neb., for amicus curiae.
Paul L. Douglas, Atty. Gen., Patrick T. O'Brien, Asst. Atty. Gen. (argued), Lincoln, Neb., Henry L. Wendt, Deputy Douglas County Atty., Arthur D. O'Leary, Steven E. Achelpohl, of Dwyer, O'Leary & Martin, P. C., Omaha, Neb., for appellees and cross-appellants.
Before HENLEY, Circuit Judge, BENNETT, Court of Claims Judge, and McMILLIAN, Circuit Judge.
HENLEY, Circuit Judge.
This action is before the court on an appeal and cross-appeal involving the constitutionality of a recently enacted Nebraska statute, Legislative Bill 991, 1980 Neb.Laws ("LB 991"), which prohibits the use, sale and manufacture of "drug paraphernalia." Plaintiffs, appellants here, are wholesale distributors and retail merchants. Defendants, appellees here, include Charles Thone, the Governor of Nebraska; Paul Douglas, Attorney General for the State of Nebraska; Elmer Kohmetscher (alternately identified as Elmer Kohmepsher) of the Nebraska State Patrol; and Donald L. Knowles, County Attorney for Douglas County, Nebraska.
The district court sustained the constitutionality of the statute after severing certain phrases and construing the meaning of other language. With due respect for the district court's thoughtful opinion, we reverse those portions of the court's ruling severing phrases as unconstitutional and hold LB 991 constitutional as against the challenges we are called upon to consider and determine.
* A. Proceedings Below.
Appellants on April 23, 1980 filed their action in district court, seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202 on the grounds that LB 991 abridges fundamental constitutional rights protected by the first, fourth, fifth and fourteenth amendments to the United States Constitution. Pursuant to an agreement of counsel, the district court on the same date entered an order temporarily restraining the enforcement of LB 991 pending a final determination on the merits. On September 4, 1980 the court held a consolidated hearing on the application for preliminary and permanent injunctions, with the result that by lengthy memorandum filed September 26, 1980 the court found the statute constitutional as construed. Pursuant to this memorandum opinion, the court's temporary restraining order was dissolved. This court granted appellants' application for stay of judgment pending appeal.
B. LB 991.
LB 991 is based on the Model Drug Paraphernalia Act (Model Act) drafted by the Drug Enforcement Administration (DEA) of the United States Department of Justice. In a Prefatory Note to the Model Act, the DEA acknowledged that the Model Act was drafted with the aim of overcoming constitutional infirmities that have rendered other drug paraphernalia laws subject to constitutional attack. In the present appeal, we are essentially asked to decide whether this effort has been successful.
The structure of LB 991 is somewhat complex and deserves summary here. Sections 1 and 2 are definitional. In Section 1, drug paraphernalia is defined as "all equipment, products, and materials of any kind which are used, intended for use, or designed for use" in manufacturing or ingesting controlled substances. A lengthy list of examples follows, with each example restating the requirement that the named object be "used, intended for use, or designed for use" in drug-related activities. The list of examples concludes with the catchall category of "objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body," followed by another list of thirteen exemplary items such as pipes of various types, miniature cocaine spoons, and roach clips. Although the enumeration of specific items is similar to that found in statutes which have been held unconstitutional, LB 991 is significantly different in coupling the named items to the mental element of intent.
Section 2 of LB 991 names fourteen factors which "a court or other authority shall consider, in addition to all other logically relevant factors," in determining whether an object is drug paraphernalia.
Section 3 defines the substantive criminal offense of using, or possessing with intent to use, drug paraphernalia.
Section 4 defines the substantive criminal offense of delivery, possession with intent to deliver, or manufacture with intent to deliver drug paraphernalia, when the deliverer, possessor or manufacturer knows or reasonably should know that the drug paraphernalia will be used with controlled substances.
Section 5 makes delivery of drug paraphernalia to a minor a special offense.
Section 6 makes criminal the placing of any written advertisement when one knows or reasonably should know that the purpose of the advertisement is to promote the sale of objects designed or intended for use as drug paraphernalia.
Finally, LB 991 contains a civil forfeiture section and a severability section.
The district court, in an as-yet unpublished opinion, The Casbah, Inc. v. Thone, 512 F.Supp. 474 (D.Neb.1980), held the statute to be constitutional after severing subsection (11) of Section 2, which requires courts and law enforcement officials to consider whether a person is a "legitimate supplier" of like items. Also severed as unconstitutionally vague was the provision in Sections 4 and 6 for prosecution where the defendant "reasonably should know" the effects of his actions.
C. Issues on Appeal.
Appellants raise four issues on appeal. First, they contend that the district court erred in failing to review the Nebraska statute under a strict scrutiny standard of review. Second, they contend that the district court usurped the legislature's function by substantially rewriting the statute. Appellants' third contention is that the statute as written is impermissibly vague and overbroad. Finally, appellants contend that the district court erred in finding that the statute does not violate fourth amendment rights against unreasonable searches and seizures.
The Nebraska Civil Liberties Union appears as amicus curiae for the limited purpose of arguing that Sections 6 and 7 of the statute, pertaining to advertising and civil forfeiture of written materials, offend the first amendment.
Appellees by cross-appeal allege that the district court erred in holding the "legitimate supplier" provision of Section 2(11) unconstitutionally vague, and in holding the "reasonably should know" standard in Sections 4 and 6 unconstitutionally vague.
We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. The parties have raised no challenge on jurisdictional grounds and have not asked us to abstain. Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981).D. Standard of Review.
In dealing with the merits of appellants' constitutional challenge, we have considered the standard of review to be applied. Appellants contend that a standard of strict scrutiny applies because LB 991 implicates first amendment rights and "a right to privacy under the fourth amendment."
We omit for the moment the matter of first amendment rights, reserving this issue for Section V, infra. Appellants' argument regarding the right to privacy is wholly without merit. It is true that the fourth amendment embraces the right to be free from unreasonable governmental intrusions into traditionally private areas, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Houle, 603 F.2d 1297, 1300-01 (8th Cir. 1979) (and citations therein). Here, however, for reasons indicated in Section IV, infra, neither fourth amendment rights nor privacy rights are implicated in LB 991. LB 991 on its face creates no classifications and applies equally to everyone. Where no suspect classifications are involved and no fundamental rights, the question under equal protection analysis is whether the legislation is reasonably related to a legitimate state purpose. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Mid-Atlantic Accessories Trade Association v. Maryland, supra, 500 F.Supp. at 849. Similarly, we apply here the rational basis standard of review.
II
Two considerations are basic to our decision on the merits. The first is our belief that we are empowered to articulate the meaning of the drug paraphernalia statute in a manner which supports a finding of constitutionality. The second is our conclusion that the element of intent saves the Nebraska statute from unconstitutional vagueness. On each matter, after careful consideration, we reach a different conclusion from that of the Sixth Circuit, the only other Court of Appeals to have considered the Model Act. Record Revolution No. 6, Inc. v. City of Parma, supra, 638 F.2d 916.
Appellants' first contention is that the district court exceeded its authority in construing and severing the Nebraska statute so as to render it constitutional.
We recognize that a federal court must take a state statute as written and cannot find the statute constitutional by remedying the defects which render it imprecise. Hynes v. Mayor of Oradell, 425 U.S. 610, 622, 96 S.Ct. 1755, 1761, 48 L.Ed.2d 243 (1976). See also Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974); Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). Only the state courts may authoritatively construe state legislation. Id.; United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971). We are not prevented, however, from "extrapolat(ing) allowable meaning." Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972). Obviously, a federal court must determine what a state statute means before judging its facial constitutionality. Broadrick v. Oklahoma, 413 U.S. 601, 618 n.16, 93 S.Ct. 2908, 2919, 37 L.Ed.2d 830 (1973).
Viewing LB 991 as a whole and construing its facial terms within the limits of our judicial powers, we conclude that the statute is constitutional. But see Record Revolution No. 6, Inc. v. City of Parma, supra, 638 F.2d at 927 (Sixth Circuit opinion is shaped by the court's "lack of power to put a limiting construction on the municipal ordinances."). We conclude that the language of the Model Act supports a saving construction which we are empowered to articulate, cf. Florida Businessmen for Free Enterprise v. Florida, 499 F.Supp. 346, 352 (N.D.Fla.1980) (statute offered no language to support judicial restructuring) and we are obliged to favor an interpretation which renders the statute constitutional. United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); Turchick v. United States, 561 F.2d 719, 723-24 (8th Cir. 1977); Tollett v. United States, 485 F.2d 1087, 1098 (8th Cir. 1973).
III
The heart of appellants' case is the contention that LB 991 is unconstitutionally vague and overbroad, in violation of the due process clause of the fourteenth amendment. The issues of vagueness and overbreadth have been extensively discussed in nearly every case involving the Model Act. For this reason, our discussion is abbreviated. We rely upon the reasoning of those courts which have concluded that the Act survives these constitutional challenges.
We turn first to the issue of vagueness. As this court recognized in Geiger v. City of Eagan, supra, 618 F.2d at 28, due process has two requirements: that laws provide notice to the ordinary person of what is prohibited and that they provide standards to law enforcement officials to prevent arbitrary and discriminatory enforcement. Appellants contend that numerous phrases in LB 991 violate one or both of these constitutional criteria.
A. "Intended for Use."
Appellants argue first that the definition of drug paraphernalia in Section 1 as including "all equipment, products, and materials of any kind intended for use" (emphasis added) with controlled substances is impermissibly vague because the statute does not specify whose intent is relevant. The problem is characterized as one of "transferred intent," insofar as the intent of a second party could allegedly be attributed to an innocent party as a basis for prosecution. Appellants contend, for example, that the statute would permit prosecution of an innocent seller or manufacturer of an innocuous item such as a spoon, if the item were intended by a buyer for use with controlled substances.
We cannot subscribe to this interpretation of the statutory language. A fair reading of the statute as a whole indicates that the intent referred to is that of the person alleged to have violated the statute. What seems at first glance to be a deficiency in draftsmanship is explained by the fact that the definitional section is intended to draw four categories of persons (manufacturers, wholesalers, retailers and purchasers) within the reach of the legislation. Sections 3 and 4, in defining substantive offenses, provide clarity by linking the requirement of intent with the person whose activity is forbidden:
It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia. (Section 3)
It shall be unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia. (Section 4)
In sum, the Nebraska statute adequately defines the mental state required to render an item drug paraphernalia and refers to the intent of the person charged with violation. Accord, Record Revolution No. 6, Inc. v. City of Parma, supra, 638 F.2d at 928 & n.14; New England Accessories Trade Association v. Browne, supra, 502 F.Supp. at 1251; Mid-Atlantic Accessories Trade Association v. Maryland, supra, 500 F.Supp. at 844; Delaware Accessories Trade Association v. Gebelein, supra, 497 F.Supp. at 292-93.
B. "Designed for Use."
Appellants renew their argument regarding transferred intent in contending that paraphernalia cannot constitutionally be defined as items "designed for use" with controlled substances. Again, this definition is said to be defective in failing to specify whose design is relevant.
The same reasoning that saves the phrase "intended for use" applies to the phrase "designed for use." There is no basis for holding that the legislation escapes vagueness with respect to "intended for use" but fails with "designed for use." Mid-Atlantic Accessories Trade Association v. Maryland, supra, 500 F.Supp. at 845; Brache v. County of Westchester, supra, 507 F.Supp. at 577; but see Record Revolution No. 6, Inc. v. City of Parma, supra, 638 F.2d at 930.
Appellants also argue that the word "designed" refers to the physical attributes of an object rather than to the intent of the person charged with violation. The Sixth Circuit in Record Revolution No. 6, Inc. v. City of Parma, supra, 638 F.2d at 930-31, found this argument persuasive, and held that drug paraphernalia could not be adequately defined in terms of unique design characteristics.
We cannot agree that the term "designed" refers to the structure of an object. The comments to the Model Act expressly indicate the contrary, specifying that items are innocent until coupled with the intentional act of design. Accord, New England Accessories Trade Association, Inc. v. Browne, supra, 502 F.Supp. at 1251; Mid-Atlantic Accessories Trade Association v. Maryland, supra, 500 F.Supp. at 844-45; Delaware Accessories Trade Association v. Gebelein, supra, 497 F.Supp. at 291-92.
C. Exemplary Drug Paraphernalia.
Appellants also assert that the list of items exemplary of drug paraphernalia in Section 1 is vague and overbroad because it includes numerous innocent items, such as a diabetic's syringe and lactose used in infant formula.
We find no flaw in the list of exemplary items because no item is drug paraphernalia absent the requisite intent to use it with controlled substances. Cf. Record Museum v. Lawrence Township, supra, 481 F.Supp. 768 (list of paraphernalia, absent requirement of intent, was impermissibly vague, as there was no provision for distinguishing between innocent and non-innocent use). The language of intent is expressly reiterated in the list of items in Section 1(1)-(4).
D. Factors Relevant to Determining Drug Paraphernalia.
Appellants next attack Section 2 of the statute, which sets forth fourteen factors that must be considered in determining whether an object is drug paraphernalia. We find it unnecessary to reiterate the specifics of appellants' attack on each of the fourteen factors. Appellants contend essentially (1) that the reference to "other authority" is vague, and (2) that several of the factors would permit conviction based on transferred intent and guilt by association.
There is no perceptible problem in the statutory reference to authorities other than the courts who may utilize the list of enumerated factors in determining what is drug paraphernalia. "Other authority" certainly refers to law enforcement personnel. The fact that the statute attempts to guide such personnel in their enforcement duties lessens, rather than increases, the danger of arbitrary enforcement.
The enumerated factors themselves pose no constitutional problem, and are valuable guides in determining what items are prohibited. New England Accessories Trade Association v. Browne, supra, 502 F.Supp. at 1251. Admittedly, the actions of third parties are relevant in determining what is drug paraphernalia. However, appellants overstate the problems of transferred intent and guilt by association by contending that third party actions are sufficient for conviction. In fact, evidence regarding third party actions is but one step in the prosecutorial scheme. If third party actions as referred to in Section 2, tend to indicate that an item is drug paraphernalia, the focus of inquiry must necessarily shift to the intent of the individual involved. Mid-Atlantic Accessories Trade Association v. Maryland, supra, 500 F.Supp. at 846-47; but see Record Revolution No. 6, Inc. v. City of Parma, supra, 638 F.2d at 933-34 (the list of logically relevant factors might permit conviction on the impermissible theory of guilt by association, but for due process requirement under Ohio law that guilt be based on personal action).
E. "Reasonably Should Know."
The final prong of appellants' vagueness argument involves the definition of substantive offenses in Sections 4 and 6. These sections make it unlawful to deliver, possess with intent to deliver, manufacture with intent to deliver or advertise drug paraphernalia in circumstances where one knows or "reasonably should know" that the items will be used with drugs (Section 4) or that the purpose of the advertisement is to promote the sale of drug paraphernalia (Section 6). Appellants allege, and the district court agreed, that the phrase "reasonably should know" will permit conviction under an impermissibly vague negligence standard, and will leave innocent sellers in the untenable posture of trying to divine the intentions of their buyers.
In addressing this contention, we cannot do better than to adopt the cogent reasoning of Judge Stapleton in Delaware Accessories Trade Association v. Gebelein, supra, which we set forth in the margin. Essentially, Judge Stapleton noted that a seller must already have intended that the item be sold for drug use before his knowledge of its use by a buyer comes into play. Accord, Mid-Atlantic Accessories Trade Association v. Maryland, supra, 500 F.Supp. at 845. In these circumstances, it is not constitutionally improper that the seller be required to open his eyes to the objective realities of the sale. Id. As more than one court has noted, there are many statutes which utilize a "reasonably should know" or similar standard and which have withstood constitutional attack. Delaware Accessories Trade Association v. Gebelein, supra, 497 F.Supp. at 294, citing Selzman v. United States, 268 U.S. 466, 45 S.Ct. 574, 69 L.Ed. 1054 (1925); United States v. Featherston, 461 F.2d 1119 (5th Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 339, 34 L.Ed.2d 258 (1972).
IV
Appellants' fourth amendment argument requires only cursory discussion.
Appellants allege, first, that the Nebraska statute would allow a police officer to seize an innocent item such as a pipe without probable cause. This argument ignores both the requirement of intent in the definition of drug paraphernalia, and the factors in Section 2 which an officer must consider in determining whether an object is drug paraphernalia. There is simply nothing in LB 991 which alters the requirement that searches and seizures be based on probable cause. Delaware Accessories Trade Association v. Gebelein, supra, 497 F.Supp. at 296; see also Mid-Atlantic Accessories Trade Association v. Maryland, supra, 500 F.Supp. at 848-49.
Secondly, appellants object to the provision for civil forfeiture of drug paraphernalia. Section 7 of LB 991 adds "drug paraphernalia" to the list of items which are subject to civil forfeiture under Neb.Rev.Stat. § 28-431(1) (Supp.1978), as follows:
(1) The following shall be seized without warrant by an officer of the Division of Drug Control or by any peace officer, and the same shall be subject to forfeiture: ... (f) all drug paraphernalia defined in section 1 of this act.
The basis for appellants' objection to this provision is somewhat unclear. Insofar as the just compensation and due process provisions of the fifth and fourteenth amendments may allegedly be implicated in civil forfeiture, however, we note that forfeiture which helps to render illegal behavior unprofitable, without prior notice and hearing, has been approved by the Supreme Court in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). The Supreme Court of Nebraska has also specifically approved as constitutional the provision for forfeiture of conveyances involved in drug traffic under the predecessor of Neb.Rev.Stat. § 28-431 (Supp.1978). State v. One 1968 Volkswagen, 198 Neb. 45, 251 N.W.2d 666 (1977); State v. One 1970 2-Door Sedan Rambler (Gremlin), 191 Neb. 462, 215 N.W.2d 849 (1974). The provision for seizure of drug paraphernalia is analogous, and in our view, constitutional.
V
The final challenge to the Nebraska statute, raised by the Nebraska Civil Liberties Union (NCLU), is that first amendment interests are implicated in Sections 6 and 7.
The NCLU objects to subsection (1)(e) of Section 7, which permits the warrantless seizure ofbooks, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use in violation of the provisions of this article.
The validity of this provision is open to serious question. Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The statute does not provide for prompt judicial review of this prior restraint on expression, nor does it place the burden of initiating judicial review on censoring personnel. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559-60, 95 S.Ct. 1239, 1246-47, 43 L.Ed.2d 448 (1975); Blount v. Rizzi, supra; cf. United States v. Thirty-Seven Photographs, supra, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822.
We do not, however, reach these misgivings. Subsection (1)(e) belongs to preexisting law, Neb.Rev.Stat. § 28-431 (Supp.1978), and was not added to the Nebraska Code by LB 991. For the reasons indicated in n.15, supra, we decline to consider this statutory material.
First amendment objections are also raised to Section 6, which prohibits advertising that promotes, in whole or in part, the sale of objects designed or intended for use as drug paraphernalia. Although the issue may be close, we conclude that this ban withstands constitutional challenge. Our conclusion is based on three considerations: (1) the statute circumscribes only commercial speech; (2) the speech embraced by the statute directly promotes an illegal activity; and (3) the overbreadth doctrine does not apply to commercial speech to the same extent as it does to non-commercial speech.
We begin our analysis with the question whether the statute reaches only commercial speech. Since the statutory prohibition applies to "advertisement(s)," the answer might appear to be self-evident. However, we proceed mindful of a lack of a clear definition of commercial speech from the Supreme Court. See Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 561, 562, 100 S.Ct. 2343, 2348, 2349, 65 L.Ed.2d 341 (1980) (commercial speech is characterized alternately as "expression related solely to the economic interests of the speaker and its audience" and "speech proposing a commercial transaction"); but see id. at 579, 100 S.Ct. at 2358 (Stevens, J., and Brennan, J. concurring) (majority's description of commercial speech is both too broad and too narrow); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 n.24, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976) (commercial speech proposes a commercial transaction); Bigelow v. Virginia, 421 U.S. 809, 821, 95 S.Ct. 2222, 2232, 44 L.Ed.2d 600 (1975); Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 384, 385, 93 S.Ct. 2553, 2558, 2559, 37 L.Ed.2d 669 (1973) (speech is not rendered commercial by mere fact that it relates to an advertisement; critical feature is whether it proposes a commercial transaction).
Here, the Nebraska statute forbids only "advertisement(s)" which promote the "sale of objects" designed or intended for use as drug paraphernalia. The statute facially does not reach speech which merely glorifies the drug culture without direct invitation to purchase specific items. Accordingly, we conclude that the statute regulates commercial speech in its narrowest sense, that is, speech which proposes a commercial transaction. But see Record Revolution No. 6, Inc. v. City of Parma, supra, 638 F.2d at 937. Such commercial speech is entitled to lesser protection than other constitutionally guaranteed expression. Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563 & n.5, 100 S.Ct. at 2350; Nickens v. White, 536 F.2d 802, 804 (8th Cir. 1976) (per curiam); Millstone v. O'Hanlon Reports, Inc., 528 F.2d 829, 832-33 (8th Cir. 1976).
The next step in first amendment analysis is to inquire whether the proscribed commercial speech involves a lawful activity. Commercial speech which promotes an illegal activity may be restricted without subjecting the restriction to scrutiny under a balancing test. Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563-64, 566, 100 S.Ct. at 2350, 2351; Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, supra, 413 U.S. at 388, 93 S.Ct. at 2560; cf. Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (outside of commercial speech context, speech advocating violation of the law may be proscribed only where directed to inciting or producing imminent lawless action); see also Carey v. Population Services International, 431 U.S. 678, 701, 97 S.Ct. 2010, 2024, 52 L.Ed.2d 675 (1977) (advertisements could not be characterized as inciting or producing imminent lawless action); Comment, First Amendment Protection for Commercial Advertising, supra, 44 U.Chi.L.Rev. at 220, 242 n.197, 243 n.203.
Here, advertising promoting the sale of drug paraphernalia encourages activities which are otherwise crimes under Nebraska law. Such speech is analogous to advertisements promoting the sale of narcotics or soliciting prostitution, and may constitutionally be prohibited. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, supra, 413 U.S. at 388, 93 S.Ct. at 2560. It would be illogical to permit Nebraska to prohibit the sale and possession of drug paraphernalia while not allowing the state to regulate advertising which encourages these same crimes.
We acknowledge some difficulty in upholding the phrase "in part," which in Section 6 prohibits advertisements that only "in part" have the purpose of promoting the sale of drug paraphernalia. Arguably, this statutory language reaches into the protected area of advertising concerning lawful activity.
We are obliged, however, to presume a legislative intent to act within constitutional bounds. Turchick v. United States, supra, 561 F.2d at 723-24. Accordingly, we conclude that where drug paraphernalia is advertised along with innocent items, obviously the statute must forbid only that part of the advertisement relating to drug paraphernalia. The remainder of the advertisement is not condemned.
In sum, we affirm in part and reverse in part the judgment of the district court. As indicated, we hold LB 991 to be constitutionally valid as against the challenges we have considered.