Can Denver airport ban sales of marijuana memorabilia?

|The Volokh Conspiracy |

Cookies shaped like marijuana leafs are pictured at the Cannabis Carnivalus 4/20 event in Seattle, on April 20, 2014. (Jason Redmond/Reuters) (For purposes of this post, think marijuana-shaped cookies that don't actually contain marijuana. -EV)

CBS Denver and AP report:

Tourists who fly to Colorado, home of legal pot, can forget about buying souvenir boxer shorts, socks or sandals with a marijuana leaf on them when passing through the Denver airport….

Airport officials feared the souvenirs would send the wrong message.

"We don't want marijuana to be the first thing our visitors experience when they arrive," airport spokesman Heath Montgomery said.

Does this violate the First Amendment?

1. If this were a ban on marijuana distributors' or producers' ads for the sale of marijuana, that would be constitutional. The court has held that commercial advertising for illegal products is unprotected by the First Amendment; and marijuana remains illegal under federal law.

2. But the ban also extends to products that simply depict marijuana. As best I can tell, the restriction is this one:

16-1 Marijuana at Denver International Airport

It shall be unlawful to: … (b) sell, display, or advertise any product bearing the image, likeness, description, or name of Marijuana or Marijuana-themed paraphernalia …

16-2 Exceptions

Section 16-1(b) shall not apply to …

(a) Publications or other commercial, print media products in which Marijuana or the image, likeness, or description thereof is incidental to the principal purpose of the publication or product;

(b) Non-commercial products containing educational materials relating to Marijuana.

If the City of Denver purported to ban the sales of such material throughout Denver—or for that matter if a state that continues to criminalize marijuana purported to ban the sales of such material throughout the state—that would be unconstitutional. Banning the depiction of marijuana (or the use of the word "marijuana") on T-shirts, boxer shorts, coffee mugs, and so on would be an unconstitutional content-based speech restriction. Even if the depiction tends to promote or support the criminal use of marijuana, such advocacy of illegal conduct at some unspecified time in the future is constitutional.

3. But here the City is only banning sales on its own property. The airport is treated as a "nonpublic forum," in which reasonable, viewpoint-neutral speech restrictions are permissible—even if they are content-based. Thus, for instance, if the City sold advertising space in the airport for commercial ads but not political ads, that would be a permissible content-based but viewpoint-neutral subject matter restriction. The question then is whether (a) restricting a narrow subject—speech mentioning marijuana—because it "send[s] the wrong message" is "reasonable," and (b) whether restricting it is "viewpoint-neutral."

I'm inclined to think that the restriction would be seen as intended to suppress a particular viewpoint (a viewpoint of openness to marijuana), even if it is facially viewpoint-neutral. True, T-shirts saying "I Just Said No to Marijuana in Colorado" or "Repeal Colorado Marijuana Legalization" would be banned alongside pro-marijuana T-shirts. Nonetheless, it sounds like the real purpose is to suppress messages of enthusiasm about marijuana or messages that people should come to Colorado for the marijuana.

More broadly, though the Court has upheld as viewpoint-neutral restrictions on broad classes of speech (such as political speech), restrictions on particular controversial subject matters (such as speech about marijuana, a war, abortion, and the like) seem much more likely to be seen as motivated by a desire to restrict a particular viewpoint on that subject. (Part of the reason is that it's usually quite clear to the government officials what viewpoint is likely to predominate in that place, and therefore what viewpoint is likely to be suppressed by the restriction.)

And if the motivation for the restriction is seen as viewpoint-based, then this viewpoint-based intention would invalidate the regulation even if it is facially viewpoint-neutral. Lawmakers' content- or viewpoint-based intentions generally don't invalidate facially content-neutral speech-restrictive laws, see United States v. O'Brien (1968), though even that is a complex question. But administrators' viewpoint-based intentions would indeed invalidate even facially viewpoint-neutral speech restrictions in nonpublic fora, see Cornelius v. NAACP Legal Def. & Educ. Fund (1985).

Thanks to reader Daniel Garfield for the pointer.