Pot vs. Pornography: First Amendment Lawsuits Threatened Over CO Bill

We have all heard the calls to regulate marijuana the same way we regulate alcohol.

But regulating it like pornography?
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As our Los Angeles marijuana lawyers understand it, that’s precisely what a bill in Colorado would do if signed into law by the governor.

The move is interesting because Colorado, more so than California in recent memory, has been careful not to limit marijuana freedoms – becoming the first of two states to enact legislation that allows marijuana use for recreational purposes.

And yet, it is on the verge of likely passing not only a nonsensical marijuana DUI law, setting the legal threshold at an arbitrary 5 THC ng/ml, but it’s looking to put literature regarding marijuana behind gas station and convenience store counters – alongside the pornography.

If the measure is signed into law, establishments that allow entry to shoppers under the age of 21 would have to hide marijuana magazines from plain site of general age shoppers.

One of the most popular marijuana literature magazines, High Times, has voiced fierce opposition to the measure, with an attorney for the publication calling the measures patently unconstitutional. There is no legal precedent, he said, for treating images of a drug – particularly a legal one – as obscene.

This is where threats of First Amendment lawsuits have been cropping up.

If Time magazine published an issue with images of oxycodone on the front cover, would we consider forcing those editions behind the counter? Why not? After all, it’s a prescription drug that is abused – often by teens – and with arguably more severe consequences than what we might expect with marijuana use.

This provision of the bill was wedged into a longer list of regulatory actions regarding recreational marijuana use in the state. The provision was a late addition to the earlier version, and even the bill’s original sponsor said she wasn’t quite sure what the addition entailed.

As it was originally penned, the measure mandates certain packaging and labeling requirements of marijuana for recreational purposes and also limits retail sales of the drug to out-of-state adult customers to no more than 0.25 ounce for a singular transaction. However, all adults would legally be allowed to possess a maximum of one ounce without facing criminal penalties.

While legislators said that legalization comes with a responsibility to also regulate advertising, lawyers for marijuana publications contend that it would be one thing if alcohol and tobacco publications were treated the same way. But they aren’t, and no one is suggesting that they should be.

High Times has been published and sold since the mid-1970s throughout the country, and has never before faced a requirement that it be sold behind the counter.

Meanwhile in Washington, the other state last fall to legalize recreational use of the drug, authorities say they too are close to releasing the first draft of regulatory provisions for general public sales. Those provisions are expected to cover cultivation, labeling, quality assurance testing and security mandates, among other aspects.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 714-937-2050.

Additional Resources:
Is Pot Porn? Colorado Considers Putting High Times Behind the Counter, May 3, 2013, Associated Press
First Amendment Lawsuits Threatened Over ‘Pot Pornography’ Provision, May 10, 2013, By Thomas H. Clarke, The Daily Chronic
More Blog Entries:
Medical Cannabis Policy Doesn’t Match the Promises, April 27, 2013, Los Angeles Marijuana Lawyer Blog