Colorado's Attorney General Agrees That Marijuana Magazine Restrictions Are Unconstitutional


Last week Denver attorney David Lane filed a federal lawsuit on behalf of High Times challenging Colorado's new rule for marijuana-related magazines, which requires keeping them out of sight in stores open to customers younger than 21, as a violation of the First Amendment. A few days later the American Civil Liberties Union filed a similar suit on behalf of newsstands and bookstores. Now it looks like litigation may be unnecessary, Denver Westword reports, because "Colorado Attorney General John Suthers has determined that the edict is unconstitutional and won't go to court to defend it." Yesterday, in response to an inquiry about the magazine rule from the Colorado Department of Revenue, which is charged with regulating the state's newly legal marijuana industry, Suthers wrote:

No magazine whose primary focus is marijuana or marijuana businesses is required to be sold only in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present, because such a requirement would violate the United States Constitution, the Colorado Constitution, and section 24-4-103(4)(a.5)(IV), C.R.S.

In other words, the state won't enforce the magazine restrictions because they're unconstitutional, as the ACLU explains in its complaint:

Because magazines (as well as other forms of communications) devoted primarily (or even exclusively) to marijuana or marijuana businesses are not within a recognized category of unprotected speech, such as obscenity, defamation, fighting words, incitement, or true threats, the government's content-based restriction on the plaintiffs' rights to make available, allow for perusal, distribute, and sell non-commercial truthful information cannot pass constitutional muster. In addition, under Article II, Section 10 of the Colorado Constitution, which has been interpreted as affording even greater protection for the freedom of speech than does the First Amendment, the regulations and associated criminal penalties plainly violate the state Constitution.

Last month the author of the magazine provision claimed "it's analogous to the pornography example," while the chief Senate sponsor of the bill to which it was added confessed, "I'm not really sure what that whole thing means." Lane, who tells Westword the federal judge hearing his lawsuit probably will want some assurance that the plainly unconstitutional provision won't be revived in the future, comments, "You would think a responsible adult in the legislature would have spoken up."

As I explain here and here, Colorado's broad restrictions on marijuana advertising also look constitutionally vulnerable.