28-444. Advertisement of drug paraphernalia; unlawful; penalty.

(1) It shall be 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.

(2) Any person who violates this section shall be guilty of a Class III misdemeanor.

Source

Annotations

Sections of drug paraphernalia statute making 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 items will be used with drugs or that purpose of advertisement is to promote sale of drug paraphernalia are not unconstitutional on ground that they would permit conviction under impermissibly vague negligence standard and would leave innocent sellers in untenable posture of trying to divine intentions of their buyers where, under sections, seller has to already have intended that item be sold for drug use before his knowledge of its use by a buyer came into play. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

The prohibition of advertising that promotes, in whole or in part, sale of objects designed or intended for use as drug paraphernalia regulates commercial speech in its narrowest sense, i.e., speech which proposes a commercial transaction and which is entitled to lesser protection than other constitutionally guaranteed expression where statute facially does not reach speech which merely glorifies drug culture without direct invitation to purchase specific items. Advertising promoting sale of drug paraphernalia encourages activities which are otherwise crimes under Nebraska law and is thus analogous to advertisements promoting sale of narcotics or soliciting prostitution and can constitutionally be prohibited. Although this statute prohibits advertisements that "only in part" have purpose of promoting sale of drug paraphernalia, court of appeals is obliged to presume legislative intent to act within constitutional bounds, and thus, under statute, where drug paraphernalia is advertised along with innocent items, statute forbids only that part of the advertisement relating to drug paraphernalia and remainder of advertisement is not condemned. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).