Drug Policy

Are Marijuana Ad Restrictions Constitutional?



In its final report to the Colorado legislature, the Amendment 64 Implementation Task Force recommends severe restrictions on marijuana advertising that may be vulnerable under the state constitution's free speech clause. The task force urges the legislature to "prohibit all mass-market campaigns that have a high likelihood of reaching minors (billboards, television, radio, direct mail, etc.)," while allowing "advertising in adult-oriented newspapers and magazines." Although Amendment 64, which is now part of Colorado's constitution, calls for "restrictions on the advertising and display of marijuana and marijuana products," such restrictions presumably would still have to pass muster under Article II, Section 10 of the state constitution, which says "no law shall be passed impairing the freedom of speech" and "every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty."

Since marijuana is still prohibited by federal law, a First Amendment challenge to advertising restrictions like those suggested by the task force would not be viable. But unless the Colorado courts read the state constitution's free speech clause as substantially less protective than the First Amendment, it is hard to see how an ad ban as broad as the one favored by the task force could survive judicial review. Even though the U.S. Supreme Court applies a relaxed First Amendment standard to "commercial speech," it has overturned much less sweeping restrictions on tobacco advertising that were likewise intended to shield minors from messages about products they are not legally allowed to consume.

In the 2001 case Lorillard Tobacco v. Reilly, the Supreme Court overturned a Massachusetts ban on tobacco billboards within 1,000 feet of a school or playground, concluding that the rule was not narrowly tailored to advance a substantial government interest, as required by the test for restrictions on commercial speech laid out in the 1980 case Central Hudson Gas & Electric v. Public Service Commission of New York. Although the Court deemed preventing underage tobacco consumption a substantial government interest and even accepted the dubious argument that advertising restrictions directly advance that goal, it said the 1,000-foot rule swept too broadly, barring outdoor tobacco advertising from "a substantial portion of Massachusetts' largest cities" and in some places amounting to "nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers."

Based on similar reasoning, the U.S. Court of Appeals for the 6th Circuit last year overturned the advertising restrictions imposed by the Family Smoking Prevention and Tobacco Control Act of 2009, which banned the use of color or pictures in outdoor ads, indoor ads (except those in adult-only businesses), and print ads carried by publications with significant underage readerships. "Although the government can show a substantial interest in alleviating the effects of tobacco advertising on juvenile consumers," the court said, "the provision of the Act banning the use of color and graphics in tobacco advertising is vastly overbroad." Again, these regulations, while also aimed at protecting children, were less restrictive than the regulations that the Amendment 64 task force is recommending for marijuana, which would ban ads pretty much everywhere except "adult-oriented" publications and websites.

Would preventing minors from seeing ads for pot stores (which will be required to ask each customer for identification proving he is 21 or older) make them less likely to smoke marijuana? Exactly how would that work? By shielding kids who have never heard of marijuana or do not realize it is now legal in Colorado? Survey data indicate that half of all teenagers have tried pot by the time they graduate high school, while only two-fifths have tried cigarettes, a legal product that is still widely advertised (although not as widely as it used to be). It is hard to believe that letting pot stores advertise on billboards or in publications aimed at general audiences (assuming they would accept the ads) would make pot smoking more appealing to teenagers. But it might make the emerging marijuana industry less offensive to cannabis-averse Coloradans and federal drug warriors, which is probably the real point.

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  1. Colorado constitution: “…every person shall be free to speak, write or publish whatever he will on any subject…”

    1. That seems pretty cut and dried to me. Iow, see below, but I think these restrictions won’t survive judicial review, under the state constitution.

  2. Why are there no laws banning the advertisement of automobiles from any venue where persons under the legal driving age can see them? After all, 15-year-olds might steal a car or take their parents’ cars and go joy ride when they see the reckless sort of behavior portrayed in car commercials.

    1. Drug and alcohol ads should use the “Do Not Attempt” disclaimer. End of discussion.

  3. There is a longstanding principle in 1st amendment/free speech law, that commercial speech enjoys less protection than other forms of speech. Example: many municipalities require solicitors to register with the city before going door to door to speak to people about their wares and this is constitutional. Those whose wares are religious or non-commercial in nature (Mormons, etc.) are exempt.

    However, even under the 1st amendment, let alone the Colorado law, this restriction seems clearly unconstitutional based on the case law I have seen. We have entire magazines like High Times, which advocate marijuana USAGE (not sales) that’s perfectly legal nationwide.

    This reminds me of when the gambling commission in WA tried to get the Seattle times to stop providing links to poker sites in their poker advice column, since online poker (for money) is illegal here. That was promptly stopped because it was recognized to be a violation of the 1st amendment.

    There is also some case law that supports the concept that ADVOCACY for illegal activity is also free speech. Note that this does not eliminate CONSPIRACY cases, where agreements and overt acts are made, but those are (obviously ) more than mere speech advocacy.

    In brief, I think that even in the realm of commercial speech, this restriction is unconstitutional, as well as clearly violative of Colorado law.

    1. In other words, we don’t even have to address the federal constitutional issue, since Article II section 20, a state constitutional provision that is even MORE protective of speech is controlling (states are free to, and many do, recognize broader constitutional rights and those are controlling to state authorities. WA state for example recognizes privacy and thus WA LEO’s are much more restricted in Search and Seizure).

      Good article. I agree with the premise. These restrictions should be overturned.

    2. There is a longstanding principle in 1st amendment/free speech law…

      Yet found nowhere in the actual 1st Amendment. Odd, that.

      1. Yet found nowhere in the actual 1st Amendment. Odd, that.

        That is because you don’t have the “official” super-secret government copy.

        1. I’m not speaking normatively; I’m speaking descriptively. Iow, I am not supporting the idea of the restriction. I am saying as a matter of de facto/de jure law, it is the law as currently interpreted

          1. I am saying as a matter of de facto/de jure law

            It may be de facto, but as the Constitution is the supreme law of the land, it is not de jure.

            /pendant off

            1. It is de jure, because it is the way the courts have ruled. That’s what de jure means.

              1. de jure adj. Latin for lawful, as distinguished from de facto (actual).

                Sorry, but no. I guess it depends on whether you think the Constitution as written is the supreme law of the land. It clearly says Congress shall make no law; there are no exceptions to that. That means that if the supremes rule differently, they are in violation of the law. Therefore, you have de facto law, not de jure.

                1. Yes.

                  1. It’s a good point. My point is if the SCOTUS rules X, then X is the de jure reality, even if I disagree with it, which I often do.

                    So, do you think there should be no criminal sanctions for true threats, that they are 1st amendment protected? Honest question.

                    1. So, do you think there should be no criminal sanctions for true threats, that they are 1st amendment protected? Honest question.

                      No, I don’t think there should be criminal sanctions for threats.

                      How do you determine if it is a “true” threat? For that, I would guess the person actually moved beyond “speech*” and took some action. At that point, you can make the argument that they are aggressing against the target and take action. But it would be the action (hiring hitman, etc.) that would be the trigger, not the speech.

                      *speech in all its forms (spoken, written, etc.)

                    2. I can respect that answer. Btw, at least as far as current law goes, the definition of true threats is fleshed out in the Brandenburg (sp?) decision. Most of the time I have to deal with “threats”, they are just so much hot air, even though the CP usually wants the other half arrested for it. I once testifed as lead detective in a very involved case involving true threats where an inmate was making threats to take out a witness when he was released. He had very detailed plans involving body disposal, a hitman, etc. He got some convicted. It was a very interesting case. I interrogated him 4 seperate times, so most of the case was based upon evidence and statements I gathered.

                      Regardless, we both probably agree there are way too many restrictions on speech and we need less, even though we may disagree on where the lines are drawn

      2. The Constitution is not a suicide pact, Night Elf Mohawk.


        1. Adults are discussing issues here, troll. Go fuck yourself.

        2. What the hell. Did that replace Thursday or is it both, now?

            1. Which is a lie. What I said was it’s understandable the situation escalated to a shooting, and I’m fine with bringing your gun. I’m not fine with HOLDING IT IN YOUR HAND as you answer the door. I’ve had dozens of people answer the door with a gun IN A HOLSTER and I have no problem with that.

              Unlike your whiny bitchiness, I’m actually out there defending the constitution, and helping people, so I can take your shit with the consideration it’s deserved – none.

              And if you are stupid enough to answer the door holding a gun, don’t go bitching to me when you get negative results. In the real world, actions have consequences.

              I’ll continue to serve and protect with dignity and honor. You can continue to criticize from your ivory tower with ad homs and nonsensical rants.


            2. Also, I get called a piece of shit for my UOF analysis, but I find it ironic that this doesn’t happen at volokh.com where I am usually in agreement with actual attorneys (volokh et al) who actually UNDERSTAND case law about UOF. I am also usually in agreement with the courts and the prosecutors who are charged with making decisions on UOF because again we decide based on actual law and policy, not fantasyland bullshit.

              Unlike you, I have been in shootings, have testified in death inquests and have taught UOF and deadly force law to recruits AND “civilians”. I’m speaking from educated stance as well as experience, whereas you are clearly ignorant of how the real world works.

      4. Correct. 1) I am speaking descriptively not normatively 2) If you want to analyze law and the relative possibility of success or failure in the courts, you need to look at the law AS IT IS, not how you want it to be

        1. I’d rather look at the statute AS IT IS, not how the courts want it to be. I can understand, say, “shall not be infringed” as well as — better than — the SCOTUS. The government may have the power to enforce whatever it wants, but it doesn’t have the power to make me play along with their word games.

          1. I can understand, say, “shall not be infringed” as well as — better than — the SCOTUS.

            Or a Senator even.

            1. Maybe not a senator with a lot of experience and who has seen dead people, but I’d give it my best shot.

              1. I totally agree. I think a substantial %age of speech restrictions that are currently de jure THE LAW, are in fact unconstitutional. We probably agree there. I think there is room for a “true threats” crime (I in fact arrested somebody for a crime under the true threats doctrine yesterday. Granted, he also got a little “stabby” with the victim and I think there is room for laws against stabbing people too), as well as non-content based time/manner restrictions – iow standing in a residential neighborhood spouting nonsense into a loud bullhorn at 3 am should be illegal, but there are a lot of (imo) unconstitutional speech restrictions on the books, especially as regards the internet – see: cyberstalking laws which are quite often ridiculously unconstitutional imnsho

  4. Are Marijuana Ad Restrictions Constitutional?

    Since marijuana restrictions aren’t Constitutional, I don’t see how ad restrictions could be.

    1. State MJ restrictions are most definitively constitutional. Even the staunchest advocate of MJ legalization, myself included, don’t argue that STATE MJ laws are unconstitutional.

      Good argument that most federal ones are, with the exception of those that prohibit, for example, transport of same across our national borders (clearly transport of items across national borders is valid jurisdiction of the federal govt.)

  5. Hey, haven’t we seen these spitballs in flight before, such as when the restrictions on tobacco advertising were sorted out? Keeping in mind that some live to read the world burning, probably be easier to say ‘oh, look, a wheel’, and just go with using the formula that not a lot of folks are contentiously bitching about, at least right this particular second.

  6. I would think that the same rules regarding the advertising of alcohol products and vendors should be applied to marijuana advertising. And to Dunphy’s point, anyone can buy a High Times magazine and get all sorts of information that clearly in support of marijuana production and consumption…. as a novelty, of course.

  7. voters: we want legal weed!

    politicians: well, fuck, ok — but with these 3,205 restrictions that in effect mean “go fuck yourself, keep buying illegal weed”

  8. which would ban ads pretty much everywhere except “adult-oriented” publications and http://www.celinebagsaleuk.com/ websites.

  9. I am speaking descriptively not normatively 2) If you want to analyze law and the relative possibility of success or failure in the courts, you need to look at the http://www.tomsshoesoutletv.com/ law AS IT IS, not how you want it to be

  10. I’ll continue to serve and protect with dignity and honor. You can continue to criticize from your http://www.nikeblazerswomensale.org/ ivory tower with ad homs and nonsensical rants.

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