On Monday I noted that H.B. 1317, a marijuana regulation bill moving through the Colorado legislature, had been amended so that advertising restrictions suggested in the original version are now required. In addition to a general ban on "mass-market campaigns that have a high likelihood of reaching minors," those restrictions include a requirement that "magazines whose primary focus is marijuana or marijuana businesses" be kept behind the counter in stores open to people younger than 21 (the minimum age for consuming marijuana under Amendment 64). The Associated Press says this provision would "treat pot magazines like pornography," but it is actually stricter in the sense that the cutoff age is 21, whereas pornography can be legally sold to anyone 18 or older. Then again, the bill apparently would not prohibit the sale of High Times to minors; it would just require them (and everyone else) to ask for it rather than pulling it off a rack.
The provision's author, state Rep. Bob Gardner (R-Colorado Springs), says he thinks it qualifies as a constitutional restriction on commercial speech, since the magazines he has in mind consist largely of ads for marijuana and related products. Yet in 2001 the Supreme Court overturned a Massachusetts law banning tobacco billboards within 1,000 feet of a school or playground, saying it unconstitutionally interfered with speech aimed at adults. The same logic should also condemn Gardner's ban on public display of marijuana magazines, especially since those publications include not just commercial speech but editorial content that under the Court's precedents qualifies for the strongest form of First Amendment protection. While the Court has upheld age limits for the purchase of sexually explicit material, it has never said the government may require merchants to keep magazines under wraps based on their political content, which is essentially what Gardner is proposing.
As Mike Riggs pointed out last year, a Louisiana law enacted in 1977 bars the sale of drug-oriented magazines to anyone younger than 18. I don't know whether that law has ever been challenged on First Amendment grounds. (If anyone has seen any relevant cases, please let me know.) But note that Gardner's rule is broader in two ways: It applies to adults between the ages of 18 and 21, and by banning display of the magazines (which the Louisiana law does not do) it limits the ability of publishers to reach even readers who are 21 or older. Another point to consider in rating the rule's prospects of surviving judicial review: Although a federal lawsuit might be problematic given that many of the covered magazines would include ads for a product that is still banned by the Controlled Substances Act, the Colorado Supreme Court has said the state constitution's free speech clause offers even broader protection than the First Amendment does.