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Separating the Obscene from the Obnoxious: Why Colorado's New Marijuana Magazine Laws are Unconstitutional

JURIST Guest Columnist Adam R. Banner argues that the Colorado HB 1317 provisions regarding marijuana magazines provide a cautionary warning for states looking to censor marijuana based content...

The plant is legal, but the picture is not?

After voters in Colorado opted to legalize the retail sale of marijuana, the state's legislature passed a bill that would consider the very image of the drug obscene.

In what some legislators said was effort to regulate the "advertisement" of marijuana, HB 1317 included a section that required magazines whose primary topic is marijuana to be sold only in marijuana stores or kept behind the counter in stores where minors under the age of twenty-one may be present. Ironically, these magazines, which include High Times, The Daily Doobie, and Hemp Connoisseur, were not subject to these restrictions until the sale of the plant itself became legal.

However, the government took greater leeway in attempting to restrict content about the drug. With this restriction came an obstacle: the First Amendment to the US Constitution proclaims that "Congress shall make no law ... abridging the freedom of speech, or of the press."

Of course, states have often enacted obscenity laws and enforced legislation dealing with speech that is not considered to be protected. However, your average literature regarding marijuana falls extremely far from the speech confirmed as "obscene" by the US Supreme Court in Miller v. California. But with the new restrictions, Colorado legislators were attempting to treat magazines that primarily deal with topics related to cannabis as possibly obscene, or at least unprotected, speech. Ironically, most pornographic magazines are not required to be kept behind the counter.

Three marijuana publications filed suit to block the provision of Colorado's new Amendment 64 requiring pot magazines to be treated like pornography. A federal judge agreed with the publications, and granted a permanent injunction against the enforcement of the amendment.

The decision is not surprising. Colorado could have attempted to defend its decision as a restriction on the time, place and manner of speech pursuant to Ward v. Rock Against Racism, but the government would have a tough time making a good-faith argument that the restriction is content-neutral. This is due to the obvious inconsistency of singling out marijuana magazines for censorship.

Magazines dealing with other legal drugs, namely tobacco and alcohol, are not restricted. Beer Connoisseur and Wine Spectator are not required to be sold only in liquor stores or kept behind the counter in bookstores, convenience stores, and other retail establishments. Cigar Aficionado and Smoke are not restricted to tobacco shops, nor are they required to be hidden from public view.

The push to regulate the sale of cannabis-related magazines was introduced by Representative Bob Gardner, who has also claimed that these magazines should be treated as commercial speech, rather than journalistic speech, and therefore subject to regulation. Gardner seems to hang his hat on the "advertisement" angle. True to form, such a justification would make the state's burden much easier in the defense of any First Amendment challenge.

The "advertisement" argument apparently did not work for Colorado, but would it work for another state in the off chance it attempts to pass similar legislation?

According to the US Supreme Court, commercial speech does not reserve the same standard of protection as noncommercial speech. Challenges to commercial speech should only be subject to intermediate scrutiny, whereas a challenge to a law based solely on regulating content would have to pass strict scrutiny. However, even the "commercial speech" argument may not be enough to salvage Colorado's new laws. Though the Court has initially drawn a firm line between commercial and noncommercial speech in decisions such as Central Hudson Gas & Electric Corp. v. Public Service Commission, that line has been blurred in recent years, especially with the Court's more recent decision in Sorrell v. IMS Health [PDF].

Regardless, magazines like High Times are not necessarily intended as advertisements. The magazine was established in 1974 and has been sold in numerous establishments without restriction, other than age restraints. Clearly, the magazine's intent was not advertisement, as it was sold and distributed during a time when marijuana was not legal. If it were intended to solicit or induce sales, its publication obviously would not have been legal, and you can bet your bottom dollar the buck would have stopped there.

Instead, the magazine deals with news and issues related to marijuana, including marijuana laws and impending legislation across the country.

If these magazines' journalistic content is banned strictly on the topic alone, where does the government then draw the line? If a magazine dealing primarily with marijuana is only sold in certain locations and kept hidden from public view, should an article on the same topic — like this one, for example — also be subject to First Amendment restrictions? I would sure hope not.

Regardless, signing HB 1317 into law put Colorado's government in the precarious position of possibly defending a law which violates the nation's Bill of Rights. So what's the bottom line? This particular law looks to have been defeated, but it will unlikely be the last attempt by a state to justify restricting free speech as it regards an increasingly accepted substance. As a criminal defense attorney, it will be interesting to follow the impending fight as other states possibly push for similar laws in an attempt to argue the constitutionality of a clearly unconstitutional prohibition.

Adam R. Banner is a criminal defense attorney in Oklahoma City, Oklahoma. His practice focuses on all issues relating to the defense of those accused of criminal activity. From trial litigation to appellate representation, he specializes in the protection of his clients' constitutional rights.

Suggested citation:Adam R. Banner Separating the Obscene from the Obnoxious: Why Colorado's New Marijuana Magazine Laws are Unconstitutional, JURIST - Sidebar, June 25 2013, http://jurist.org/sidebar/2013/06/adam-banner-marijuana-magazines.php.

This article was prepared for publication by Theresa Donovan, an Assistant Editor with JURIST's Professional Commentary Service. Please direct any questions or comments to her at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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