Does the First Amendment Protect Marijuana Ads?

Last week High Times and Westword filed a federal lawsuit arguing that Colorado's restrictions on marijuana advertising violate the First Amendment. The complaint argues that advertising by state-licensed pot shops "constitutes protected commercial speech because it addresses lawful activity...and is not deceptive, false, or misleading." On Saturday The Denver Post editorialized in favor of that challenge, noting that "the First Amendment generally protects commercial speech as long as it concerns a lawful activity and is not misleading." But does selling marijuana, which remains a felony under federal law, count as "a lawful activity" as far as the federal courts are concerned?

If so, Colorado's regulations, which allow recreational marijuana retailers to advertise only if they have "reliable evidence that no more than 30 percent of the audience...is reasonably expected to be under the age of 21," are clearly unconstitutional. That rule effectively bans marijuana billboards, makes ads on radio or TV highly problematic, and restricts print ads to publications that can show at least 70 percent of their readers are 21 or older. In the 2001 case Lorillard Tobacco v. Reilly, the Supreme Court rejected much more modest advertising restrictions that were likewise aimed at protecting impressionable minors from exposure to messages about products they are not allowed to buy.

Then again, the Supreme Court has upheld outright bans on ads concerning illegal commercial activity. In the 1973 case Pittsburgh Press Co. v. Human Relations Commission, the Court approved a ban on employment ads that specify a preferred sex for applicants. "We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes," it said. Seven years later, in the landmark case Central Hudson Gas & Electric v. Public Service Commission, the Court reiterated that principle, saying the First Amendment does not protect "commercial speech related to illegal activity."

UCLA law professor Eugene Volokh, a First Amendment specialist, says selling marijuana, even when permitted by state law, seems to fall under that exception. "I don't see how marijuana sales are lawful, given the federal prohibition, so I think advertising marijuana is not protected under commercial speech doctrine," Volokh says. "I realize that here the commercial speech restriction is imposed by the state, and the sales restriction is imposed by the federal government, but I don't think that would change the First Amendment analysis." 

That's why I have argued that a free-speech challenge to Colorado's restrictions on marijuana ads would have a better shot in state court. The Colorado constitution's free-speech guarantee, as interpreted by state courts, provides even stronger protection than the First Amendment, and the same constitution now includes language recognizing marijuana retailing as a legal activity.

U.S. District Judge Marcia Krieger, who is handling the High Times/Westword case, has not yet addressed the question of whether selling pot is a "lawful activity" when a state repeals its penalties for it, notwithstanding continued federal prohibition. But on Friday she rejected the initial complaint, saying the plaintiffs needed to show standing by providing evidence that the ad restrictions have affected them, as opposed to the businesses that are directly constrained by the regulations. Denver attorney David Lane, who is representing the magazines, said he would file an amended complaint addressing that issue.

I have emailed Lane about the "lawful activity" question and will add his response when I get it.

[This post has been updated with comments from Eugene Volokh.]

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  • Notorious G.K.C.||

    Using a leprechaun to advertise marijuana is offensive! Leprechauns are just cheerful, hyperactive elves who always have the munchies for Lucky Charms.

  • Notorious G.K.C.||

    "Begorrah, ye can just *hear* the rainbow!"

  • Fist of Etiquette||

    The Bill of Rights is suspended where the War on Drug Users is concerned.

  • Francisco d Anconia||

    Does the First Amendment Protect Marijuana Ads?

    No. 1A only applies to speech WE approve of.

    Duh! Big red truck.

  • Libertymike||

    The absolutist position on the ambit of the 1A is just far more intellectually robust than the sophomoric claptrap usually advanced in support of the contrary.

  • John C. Randolph||

    selling marijuana, which remains a felony under federal law,

    Would you kindly stop repeating this canard?

    Selling marijuana is NOT a felony under "federal law", because there is no constitutional authority for the federal government to ban marijuana or any other drug. Any act of congress purporting to do so is not a law at all, it is a usurpation of power explicitly denied to it under the tenth amendment.

    -jcr

  • Mickey Rat||

    That maybe the way things should be, but we live in world where should is only theoretical much of the time.

  • pan fried wylie||

    Since it's a suit against a CO law/reg, should the feds' position matter? Does it come into play because of the alleged violation of of the federal constitution or because it's being heard in a federal court? Should either of those distinctions matter?

  • Seamus||

    In Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986), the Supreme Court ruled that it was OK to ban advertising for something that *could* be outlawed (in that case, the operation of a gambling casino). (In contrast, you couldn't ban advertising for something that was constitutionally protected, such as abortion. See Bigelow v. Virginia, 421 U.S. 809 (1975).) Since presumably Colorado could ban marijuana if it wanted to, presumably it could take the lesser step of banning advertising for marijuana shops.

  • Mickey Rat||

    The 1st Amendment does not protect tobacco advertising (though it should). I am not sure why marijuana purveyors think that a product that is stereotypically smoked think that it should be treated differently.

  • Bubba Jones||

    I would think that the First Amendment prevents Colorado from banning marijuana advertisements and that the Feds would not have jurisdiction to ban local ads.

    Except that case law would of course allow the Feds to ban local ads because it impacts the prices of illegal pot in Peoria.

    This is definitely a better case for state court.

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