Last week High Times and Westword filed a federal lawsuit arguing that Colorado's restrictions on marijuana advertising violate the First Amendment. The complaint argues that advertising by state-licensed pot shops "constitutes protected commercial speech because it addresses lawful activity…and is not deceptive, false, or misleading." On Saturday The Denver Post editorialized in favor of that challenge, noting that "the First Amendment generally protects commercial speech as long as it concerns a lawful activity and is not misleading." But does selling marijuana, which remains a felony under federal law, count as "a lawful activity" as far as the federal courts are concerned?
If so, Colorado's regulations, which allow recreational marijuana retailers to advertise only if they have "reliable evidence that no more than 30 percent of the audience…is reasonably expected to be under the age of 21," are clearly unconstitutional. That rule effectively bans marijuana billboards, makes ads on radio or TV highly problematic, and restricts print ads to publications that can show at least 70 percent of their readers are 21 or older. In the 2001 case Lorillard Tobacco v. Reilly, the Supreme Court rejected much more modest advertising restrictions that were likewise aimed at protecting impressionable minors from exposure to messages about products they are not allowed to buy.
Then again, the Supreme Court has upheld outright bans on ads concerning illegal commercial activity. In the 1973 case Pittsburgh Press Co. v. Human Relations Commission, the Court approved a ban on employment ads that specify a preferred sex for applicants. "We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes," it said. Seven years later, in the landmark case Central Hudson Gas & Electric v. Public Service Commission, the Court reiterated that principle, saying the First Amendment does not protect "commercial speech related to illegal activity."
UCLA law professor Eugene Volokh, a First Amendment specialist, says selling marijuana, even when permitted by state law, seems to fall under that exception. "I don't see how marijuana sales are lawful, given the federal prohibition, so I think advertising marijuana is not protected under commercial speech doctrine," Volokh says. "I realize that here the commercial speech restriction is imposed by the state, and the sales restriction is imposed by the federal government, but I don't think that would change the First Amendment analysis."
That's why I have argued that a free-speech challenge to Colorado's restrictions on marijuana ads would have a better shot in state court. The Colorado constitution's free-speech guarantee, as interpreted by state courts, provides even stronger protection than the First Amendment, and the same constitution now includes language recognizing marijuana retailing as a legal activity.
U.S. District Judge Marcia Krieger, who is handling the High Times/Westword case, has not yet addressed the question of whether selling pot is a "lawful activity" when a state repeals its penalties for it, notwithstanding continued federal prohibition. But on Friday she rejected the initial complaint, saying the plaintiffs needed to show standing by providing evidence that the ad restrictions have affected them, as opposed to the businesses that are directly constrained by the regulations. Denver attorney David Lane, who is representing the magazines, said he would file an amended complaint addressing that issue.
I have emailed Lane about the "lawful activity" question and will add his response when I get it.
[This post has been updated with comments from Eugene Volokh.]