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.