Constitutional Law

For Marijuana Activist, a Gag Instead of an Ankle Bracelet

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Bob Newland, a longtime marijuana activist in South Dakota, could have received a sentence of up to two years in prison after pleading guilty to possessing four ounces of pot. Instead Judge John Delaney gave him 45 days in jail and a year of probation. But he also demanded that Newland forfeit his First Amendment rights during that period, saying, "You are not going to take a position as a public figure who got a light sentence." Worrying about the message that might send to the state's impressionable youth, and declaring that "95 percent of my chronic truants are using pot," Delaney ordered Newland, director of the South Dakota chapter of the National Organization for the Reform of Marijuana Laws, to shut up about the reform of marijuana laws until his probation is completed.

Although Newland was inclined to accept the condition if the alternative was serving hard time, he may end up challenging the gag order with help from the ACLU. Allen Hopper, litigation director at the ACLU's Drug Law Reform Project, told The Drug War Chronicle:

Surrendering our First Amendment rights cannot be a condition of probation. The Constitution clearly protects the right to advocate for political change without fear of criminal consequence. It is a shame that the court feels obligated to muzzle protected speech in a misguided effort to guard society from unfounded fears of open debate.

Chris Hedges, a law professor at the University of South Dakota, also questioned the constitutionality of the sentence:

Courts impose conditions on probationers all the time, but this sort of condition is very unusual. People ought to be able to argue that the law should be changed, but now he can't do that. We always have to be concerned when someone's speech is infringed.

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  1. First thing I would do is stand on the court steps and declare a need for reform. If the SD court acts on it you now have damn near text book USSC case, and a giant multi-year headache.

  2. Judges have become so accustomed to restricting people in any way they wish during probation that this doesn’t surprise me at all. Once they get to “you got a DUI, so you cannot drink any alcohol while on probation”, why wouldn’t they tell someone what they can or cannot say?

  3. Californians: Tell your state legislators to support AB390, which would legalize, tax, and regulate cannabis for adults. Visit http://yes390.org

  4. for adults

    Boooo, let my 2 year old drink coffee-tequilla and smoke a joint if he wants to!

  5. Damn, he got off easy.Try this [pdf] This is a non-violent offender program.

  6. In other marijuana news, Gov. Lynch of NH vetoes their medical marijuana bill.

  7. How is this legal for the judge to silence a const. protected right, prisoner or not you still have the right, or else nazi prision gangs and religious factions would not exist, since they could simply prohibit a prisoner from expressing thenslves, which of course they can not. if he was in jail he could talk, and write to whoever he wished for whatever reason. this cant be lawful??? if so fuckin how!?

  8. What if the judge agreed not to sentence him to a cruel and unusual punishment? Would that cancel out the infringement of his free speech?

  9. Once they get to “you got a DUI, so you cannot drink any alcohol while on probation”, why wouldn’t they tell someone what they can or cannot say?
    __________________________________________
    ah but because you cant drink, you can still TALK about it, hell even be around it, as long as you dont do it. same dif here, whats the problem, i would go against that judge on day 1 as i walked out of the courthouse and said it jail be dammed, its my right and i will fight you to the death for it!

  10. “95 percent of my chronic truants are using pot,”

    Of course they are. They’re ‘chronic’ truants… get it… chronic?

    Never mind.

  11. This is terrible news that a judge would silence a citizen’s right to the First Amendment! People this is why we have a Bill of Rights! If we are silent about this kind of debauchery we better kiss the rights of American citizens goodbye.

  12. Actually, I would like one of those self-righteous NORML bastards to shut up for a while. Change his sentence to 90 days!

  13. A certain poster in this thread has offered a poor example of the putative harmlessness of both pot and free expression.

    Just sayin’.

  14. First amendment? Well, let’s look at the Fifth (FIF) Amendment:

    No person shall…be deprived of life, liberty, or property, without due process of law…

    Unfortunately, the law on the books says that possession of marijuana is illegal. The guy had a trial and was found guilty. He got his due process, and the sentence involves deprivation of liberty.

    Thanks for playing.

  15. I suspect that the judge was afraid that if the convict were allowed to talk about it, that would highlight the light sentence he got. The governor may well be covering his ass and helping provide a low-visibility alternative to severe sentences. It backfired in this case, and the consequences may go one way or the other in terms of sentencing of others.

  16. This judge is nothing but a two-bit fascist.

  17. Not saying it’s right, but I don’t think it’s unusual. Don’t felons typically have restricted voting and 2A rights?

  18. “95 percent of my chronic truants are using pot,”

    Tell use, your honor, what percentage use beer?

    Cigarettes?

    Coffee?

    What about Post hoc ergo propter hoc reasoning?

    We’re on the edge of our seats here.

  19. s/use/us/

    its not like there is a preview function or anything…

  20. The IRS courts do this all the time. They did it to Irwin Schiff repeatedly (every year, at tax season).

    If I were this guy, I’d go directly to my friends, set up an event, and hold a rally in front of the judge’s house, with bullhorns, telling the people why you’re there, what you have to say about marijuana, etc. Get on TV getting arrested for talking. Whether the local news is nice to you or not doesn’t matter. YouTube will love you. 🙂

  21. Unfortunately, the law on the books says that possession of marijuana is illegal. The guy had a trial and was found guilty. He got his due process, and the sentence involves deprivation of liberty.

    Thanks for playing.

    Actually, no. The defendant is being offered two different punishments, with the lighter punishment offered as an inducement to try to get him to refrain from political action.

    If I decided to start handing out traffic tickets, and the fine was $1,000,000 for your infraction, but could be reduced to $100 if you signed a paper waiving your right to vote, or if you signed an absentee ballot in my presence voting the Republican ticket, my action would be unconstitutional. The fact that I was offering you “due process” as part of my scheme to evade your rights would be irrelevant.

    Thanks for playing.

  22. oathwhore is right…. the courts can take away life liberty and property if you’re properly convicted by a jury of your peers. Taking away second amendmend rights of convicted criminals is routine. No reason first ammendnment can’t be removed as well. Whether the crime should be a crime is a different question that has no relevance to the punishment.

  23. Actually, I think Fluffy’s right.

    Caveat: I’m no legal scholar.

  24. I think even a lawyer with a two-digit I.Q. ought to realize that there’s a free-expression problem with this sentence.

    The U.S. Supreme Court has said that you don’t lose all your First Amendment rights just because you’ve been convicted of a crime and sent to prison. In prison, you even have the right to join a racist prison gang, unless the prosecution can prove that it’s a violent gang. In other words, the government must start with the assumption that the gang is simply a peaceful organization engaging in innocent First Amendment activities, and you can’t simply presume it’s a violent organization from the mere fact that it’s a prison gang. Weird, but true.

    If convicted killers, rapists and robbers in prison have a First Amendment right to join (presumptively peaceful) racist prison gangs, then I would suppose that convicted dope-possessors on probation have the right to advocate for legal reforms.

    If judges could dictate the political activities of probationers, then why not order probationers to perform ‘public service’ work by assisting the judge’s political party during elections?

    The concept of ‘unconstitutional conditions’ means that even if the government is legitimately taking some action against a person, it still cannot discriminate against that person based on their exercise of constitutional rights. Thus, assuming that there is no constitional right to a zoning variance, and that the grant of such a variance is at the discretion of the local government, the government cannot grant variances only to its own political supporters and deny them to opponents, etc.

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