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Marijuana: High Times will likely sue if treat-pot-mags-like-porn provision goes forward

Last week, in a post about some of the more unusual aspects of the main bill to regulate Amendment 64, which allows adults 21 and over in Colorado to use and possess small amounts of cannabis, we highlighted a passage that would require marijuana magazines to be kept behind the counter of general retail outlets, much like porn publications. This morning, we reached out to High Times, arguably the planet's most prominent marijuana magazine -- and we're told that if this section becomes law, the state should expect a lawsuit.

As we've reported, the version of HB 13-1317 passed by the House (read it below) calls for "a requirement that magazines whose primary focus is marijuana or marijuana businesses are only sold in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present."

In other words, a convenience store wanting to stock publications such as High Times or THC Magazine won't be able to do so in standard racks easily accessible to customers. Rather, issues will be next to porn mags, with their covers presumably shielded to protect children -- and customers will have to ask clerks to grab copies for them.

Warren Edson.
Warren Edson.

This edict dumbfounded marijuana attorney Warren Edson.

Amendment 64 proponents "said to regulate marijuana like alcohol," he told us, "but apparently, our legislature wants to regulate it like porn.

"How many beer brewing and distilling magazines are in the racks at the Tattered Cover -- yet they're going to make these magazines go behind the counter? Really?" In his view, this move "could be devastating for both the industry as a whole and consumers in terms of cutting back on information and ways to see new products -- because a lot of people aren't going to want the icky feeling of having to go into a 7-Eleven and ask, 'Can I see the magazine behind the brown paper bag?'"

To get High Times' take, we reached out to Dan Skye, the magazine's editorial director. Responding via e-mail, Skye shares the reaction from publication attorney David Holland: "He called the magazine restriction 'patently unconstitutional' and said there's no legal precedent for treating pictures of a drug as obscene.

"Holland said the magazine would likely sue if the provision becomes law," Skye adds.

One more Holland quote offered by Skye: "It is a content-based restriction that violates freedom of speech."

Defending the language in a recent Associated Press piece was Representative Bob Gardner, a Republican from El Paso County, who didn't shy away from comparing pot mags and sexually explicit publications. "It's analogous to the pornography example," he said.

Nonetheless, Gardner conceded that he wouldn't be surprised if this section failed to make the final cut of 1317.

As for Edson, he's less certain the provision is toast. With so much focus being put on the question of driving under the influence of drugs (more on that shortly), he believes some items that might otherwise wind up being excised could slide through -- with the magazine provision being one possibility.

Here's the House-approved version of 13-1317.

House Bill 13-1317: Revised April 29, 2013

More from our Politics archive: "Marijuana retailers may not have to grow their own -- and that's great, attorney says."