Does the First Amendment Protect Marijuana Ads?

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.”

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.