Post Office Says Marijuana Ads Make Periodicals 'Nonmailable'

The legal justifications for the ban seem dubious.


Rocky Mountain Organic Medicine

Last month U.S. Postal Service officials in Portland, Oregon, announced that periodicals containing marijuana ads are "nonmailable." That came as a surprise to Oregon newspaper publishers, many of whom depend on the mail to deliver part of their print runs and some of whom sell space to cannabusinesses, which are legal under Oregon law. While publishers knew those businesses are still considered criminal enterprises under federal law, it never occurred to them that a single dispensary ad could make an entire issue untouchable by the USPS.

Members of Oregon's congressional delegation were surprised too. Last week four of them—Sens. Ron Wyden and Jeff Merkley, plus Reps. Earl Blumenauer and Suzanne Bonamici, all Democrats—sent a letter to Postmaster General Megan Brennan, asking whether her underlings in Portland were freelancing or stating a national policy. "It appears a clarification of USPS policy is needed for state-legal marijuana businesses who seek to mail advertisements, as well as newspapers or periodicals that may run ads from marijuana businesses and who rely on the Postal Service to distribute their publications," they wrote.

So far no clarification has been forthcoming from Brennan. But this week USPS officials in Alaska, where marijuana is also legal, said they take a similarly dim view of messages related to cannabis commerce. "The law applies to all states," a spokesman for the USPS district office in Anchorage told the Alaska Dispatch News. "It applies to all marijuana ads. It is a federal law."

Which law is that? According to the Portland notice, it's 21 USC 843(c), which "make[s] it unlawful to place an ad in any publication with the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule I controlled substance." But that provision, which carries a penalty of up to four years in prison, applies to the person who places the ad, not to the mailman who delivers a newspaper containing the ad.

"I could imagine a Post Office lawyer arguing that allowing these newspapers to be mailed would make the USPS an accomplice to the illegal advertising," says Alex Kreit, a professor at Thomas Jefferson School of Law who specializes in drug policy. "But I think that would be a very weak argument. Generally speaking, one needs a true intent to be an accomplice. I don't think mere knowledge that an illegal advertisement is being mailed would be enough. An intent to aid in the illegal advertising would be needed to make the USPS an accomplice."

High Times

As the USPS notes, 21 USC 843(c) does not apply to literature "which advocates the use of [illegal drugs], which advocates a position or practice, and does not attempt to propose or facilitate an actual transaction." Hence High Times remains mailable, except for issues that include ads for marijuana merchants, as the magazine's 40th anniversary issue last year did (see left).

The Portland notice also cites a USPS regulation that "restricts any advertising, promotional, or sales matter that solicits or induces the mailing of any article described in PUB 52 as hazardous," which includes illegal drugs. "If an advertisement solicits the mailing of controlled substances such as marijuana," the notice says, "it would violate USPS mailing standards." But unless a business offers to deliver its products by mail, that description does not apply to ads placed by pot shops, growers, or manufacturers of marijuana products.

It looks like USPS officials are not worried about avoiding criminal culpability or about enforcing mail regulations so much as playing their part in fighting the war on drugs. While "the authority for enforcing the Controlled Substances Act and implementing laws rests primarily with the Drug Enforcement Administration," the memo says, "the USPS cooperates with all other agencies in preserving the laws of the United States."

That stance raises additional legal issues. As Wyden et al. note, the DEA itself is barred by Congress from interfering with the implementation of state medical marijuana laws, and trying to block dispensary ads arguably violates that injunction. The USPS policy may also be inconsistent with the First Amendment. Although the Supreme Court has said ads proposing illegal transactions can be banned, it is not clear whether that free-speech exception applies when the transaction is legal under state but not federal law.

Even if it does, the USPS policy might still be on shaky constitutional ground. Since the ban "would apply to the entire newspaper, not just the specific advertisement," Kreit says, "I could envision an argument that even if the advertising itself can constitutionally be banned, the USPS policy against shipping newspapers that contain these advertisements is an unconstitutionally overbroad burden on protected speech."

NEXT: Dead Informants Highlight the Drug War's Cruel Chain of Betrayal

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  1. You know, there’s just no such thing as too many laws.

  2. Portland – where a significant population of the greenest environmentalists won’t allow anything off-grid or unconventional because that would be silly.

    1. Keep Portland Weird!

      As long as it conforms to the “right types of people” definition of weird.

    1. +1 Carry A. Nation

  3. Federal hegemony is the premiere shepherd of the so-called free-willed. Departmental deviation is anathema to the monolithic meanness lacing the marbled edifices of socialized maternalism.

  4. The United States Post Office: We Refuse to Adapt to Changing Times and Pass Those Savings on to You

  5. Without legalization at the Federal level you are at the tender mercies of any bureaucrat who wants to screw with you.i

  6. Although the Supreme Court has said ads proposing illegal transactions can be banned, it is not clear whether that free-speech exception applies when the transaction is legal under state but not federal law.

    Even if it does, the USPS policy might still be on shaky constitutional ground.

    Probably not since it likely would be justified under the Interstate Commerce Clause as usual.

  7. I can’t believe in 2015, that it is cost effective to advertise in print publications anyway. I am certainly no expert in marketing, but it seems that the market they are trying to reach aren’t waiting for their pottery barn catalogs.

    1. In High Times? They’re doubtless pored over very carefully.

      No sarc. Trends in strains and gear often start in the mags.

    2. They are waiting for their waiting for their pottery bong catalogs. Glass is also popular.

  8. “Then shouldn’t the bucket be on your head?”

  9. How does the USPS know the content of the mail they are delivering?

    1. It’s not illegal for THEM to read your mail. Or, I mean, waste money buying their own copy to check the ads.

      Spacing Guild Mail: We Don’t Give A Shit, We Just Deliver It.

      1. Periodicals and advertisements are treated differently from first class mail.

  10. I’m totally against this rule. However, I’m not sure there’s a good argument under current constitutional jurisprudence. If it’s appropriate for the USPS to refuse to transmit ads advertising the sale of controlled substances, then I’m not sure if there’s a less restrictive way to achieve that goal than to simply refuse the entire parcel.

    We wouldn’t want the USPS to review all mailers and magazines, hunting for marijuana ads and then cutting them out so they can deliver the rest. First because that’s so time consuming the USPS can refuse to take that burden on (as an administrative or business decision). But more than that, we don’t want to encourage that behavior because it promotes the idea that postal inspectors need to review our mail for the appropriate content.

    I’d rather Congress or DOJ clarify that the USPS should not be looking into the content of the mail, or at least clarify that USPS should not care if there’s a marijuana ad. If Congress can muster a majority to tell the DEA to de-emphasize marijuana cases, then maybe they can get USPS to back off too.

    1. Note that if the ad were for hitman services or chattel slaves, then we might not think the same. We wouldn’t say “well, you have to deliver it anyway” or “well go through and cut out the assassin classifieds.” I think most of us would say it’s okay to simply refuse the parcel. A single criminal ad could thereby taint a 50-page magazine.

      The problem is that most of us realize marijuana is not a big deal, so we’re fine with the idea of letting it through. But if in the eyes of the law it’s a serious crime, then ads for marijuana may be treated like ads for crimes that truly are serious. And we wouldn’t be so lenient on serious crimes.

      The problem is not that the USPS wants to refuse to transmit inducements to criminality. The problem is that marijuana is criminalized.

  11. I’d rather Congress or DOJ clarify that the USPS should not be looking into the content of the mail,

    I’d much rather Congress took away the USPS monopoly on First Class mail and stopped subsidizing their operational expenses then watch them sink to the bottom of the ocean faster than the RMS Lusitania.

    1. That’s a better solution. Also one that could take years to get through. And would involve a million-plus unionized employees screaming and marching, and a bunch of rural communities complaining when told that Congress wants to close their post office. Real reform will happen when it saves the Treasury money, which is why places like Japan, Canada, UK, etc. consider privatization schemes.

      As it stands, Congress forces the USPS to maintain unprofitable hours, services and locations for political reasons. If they privatize it, then USPS becomes less profitable and it becomes even harder for Congress to force those post offices to stay open and to force the USPS to maintain Saturday delivery. Congress would have to allocate money to cover it.

      Congress is benefiting from the postal monopoly because it shifts money from private carriers to the USPS, which Congress can dictate be used for political popular expanded services. So reform would cost Congress – either more money or fewer services.

      1. Even hillbillies pay their bills on-line.

  12. Generally speaking, one needs a true intent to be an accomplice.

    So mens rea applies if you work for the government ?

  13. Is this just because the postal service is treated as “special” by the law? If the periodicals were delivered by any other common carrier (like, for example, the trucks delivering the magazines to a newsstand) would it violate the exact same law?

  14. Can we legalize it now?

  15. I use USPS priority mail to send my reefer to friends.

    It’s quick, I can track the reefer, and there is a mailing kiosk not far from my home.

    Thanks man.

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