First Amendment

New Mexico Medical Marijuana Supplier Wins First Amendment Challenge to the State Fair's Absurdly Broad Censorship

The overturned rules banned microscopes and shovels as drug paraphernalia and prohibited pictures of cannabis or the equipment used to grow it.

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New Mexico officials have agreed to settle a First Amendment lawsuit challenging ridiculously broad and picayune restrictions on a medical marijuana booth at the state fair. Under the agreement, the agency that oversees the fair, which is held each year at the Expo New Mexico campus in Albuquerque, will pay $69,600 to Ultra Health LLC, which runs 23 state-licensed medical marijuana dispensaries, and drop its challenge to a federal injunction against the fair's "entirely unreasonable" censorship of the company's speech.

Ultra Health initially ran into trouble at the 2016 state fair, where its exhibit included a cannabis plant and marijuana pipes. State police officers ordered the company's representatives to pack up and leave. The next year, Leigh Jenke, Ultra Health's director of quality and compliance, asked Raina Bingham, the state fair's concessions and commercial exhibits manager, to clarify what was prohibited in a display devoted to medical marijuana. Bingham's response was breathtakingly broad:

You may not bring onto the EXPO New Mexico campus any and all cannabis and
cannabis derived products including CBD products. You may also not bring any product that would be outside your New Mexico Department of Health approved distribution plan. Moreover, you may not bring any type of drug paraphernalia that could be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body any type of cannabis or other controlled substance. You are also precluded from displaying any image of the above restricted items in any way to include banners, flyers, clothing, or any other medium.

U.S. District Judge James Parker explored the absurd implications of that edict, which was ostensibly aimed at promoting a "family friendly" environment, in a January 2019 ruling. Ultra Health not only was forbidden to display actual cannabis plants or products; it was also barred from displaying images of them, including signs, photographs, and videos explaining the production, distribution, or use of medical marijuana. Also verboten: any items that would qualify as drug paraphernalia in the context of a medical marijuana booth, including a rosin press, a microscope, a shovel, and a plastic bin, as well as images of those items.

"A picture of a tractor tilling a field to prepare it for planting corn would be allowed in a vendor's booth pertaining to corn, but the State Fair would prohibit the very same picture of the tractor tilling a field if placed in Ultra Health's booth because it would constitute paraphernalia in that context," Parker noted. "That the very same photograph of a tractor or display of an otherwise ordinary agricultural implement would suddenly be rendered 'family unfriendly' when displayed in Ultra Health's booth is entirely unreasonable. Under Defendants' expansive interpretation of the restrictions on implements and their images, even the most innocuous items are rendered objectionable when displayed in the context of medical cannabis, a subject Defendants concede falls within the statutory purpose of the State Fair and is otherwise allowable."

As a "limited public forum," Parker said, the state fair has wide discretion to regulate exhibitors' booths so they are consistent with the event's goals. But its rules can pass constitutional muster only if they are reasonable in light of the forum's purpose and do not discriminate based on viewpoint.

Parker noted that Bingham had accommodated other exhibitors by making exceptions to the seemingly sweeping restrictions laid out in the State Fair Vendor Manual, which include a general ban on "the display, sale, or distribution of weapons (firearms, knives, mace, martial art items, chains, etc.), toy weapons, fireworks, drug-related merchandise or paraphernalia, pornographic materials, offensive wording or graphics of any type, and counterfeit or 'knock-off' items." Notwithstanding the rule against knives and firearms, a cutlery company had been allowed to display its wares, and Bingham testified that she would "allow a hunting and fishing store to display photographs of its merchandise, including shotguns sold in its store."

Ultra Health was granted no such leniency. "Contextual exceptions to the general prohibited items provision are troublesome and bear on the reasonableness of the State Fair's prohibitions as applied to Ultra Health," Parker wrote. "The absence of definite and impartial criteria for determining whether an item is family friendly, combined with evidence of inconsistent application, renders the policy as applied to Ultra Health unreasonable."

After concluding that the policy was not reasonably related to its rationale, Parker issued a permanent injunction requiring the state fair to let Ultra Health display "implements used to grow, manufacture and process medical cannabis, including a microscope and a lavender rosin press"; "images of implements used to grow, manufacture and process medical cannabis, including a video of Ultra Health's laboratory, growth, and processing facilities"; and "images of cannabis plants cultivated by Ultra Health as part of its producer license through the New Mexico Department of Health's Medical Cannabis Program." By dropping its appeal of Parker's decision, the state fair leaves that injunction in place.

Duke Rodriguez, president and CEO of Ultra Health, told the Albuquerque Journal that the $70,000 payment that was also part of the settlement agreement will not fully cover the company's legal fees and other expenses related to the dispute. "Our actual expenses were higher, but the agreed settlement amount represents a reasonable settlement with the state of New Mexico and hopefully extends an olive branch to the administration as to our willingness to resolve these matters in a timely and equitable manner," Rodriguez said. "We were willing to compromise on the dollars and cents of the litigation, but we did not compromise on the principle at stake."

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