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Marijuana magazines as porn rule officially struck down at no cost to taxpayers

As we've reported, Colorado Attorney General John Suthers determined that a new marijuana-law provision that treated pot magazines like porn was unconstitutional shortly after it was targeted by a pair of lawsuits -- the first from publications like High Times, the second courtesy of the ACLU, representing newsstands and booksellers.

Now, Judge Richard Matsch has issued a permanent injunction against the law; see it below. The cost to the taxpayers over this legal roundelay? Nothing.

As we've reported, the law originally known as House Bill 13-1317 called 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."

David Lane.
David Lane.

Constitutional concerns quickly arose over this edict, but it remained in the final version of the bill. Immediately after it passed, Lane sent an e-mail on the subject to Suthers promising a lawsuit once Governor John Hickenlooper signed it into law, and he was as good as his word. The complaint, on view below, names as plaintiffs Trans-High Corporation, parent company of High Times, and two Colorado pubs, The Daily Doobie and The Hemp Connoisseur, also known as THC Magazine.

In the wake of the suit's filing, Lane told us the problems with the statute are "very, very simple.... The government cannot pick and choose which political messages they like and which political messages they dislike in the marketplace of ideas. The government has to stay completely on the sidelines, with very limited exceptions."

He added that "if the attorney general is smart -- and John Suthers is smart -- he will concede the point rather than fight about it and ultimately end up paying my exorbitant attorneys fees, which is what they'll do when they lose the case."

The ACLU, working on behalf of the Tattered Cover and numerous other book stores and retail outlets in Colorado, joined the chorus within days. But a prolonged legal fight was short-circuited when attorney general Suthers determined that the law as written was unconstitutional. With the state declining to fight on behalf of the statute, Matsch promptly issued the permanent injunction, thereby killing it once and for all.

John Suthers.
John Suthers.

Lane is pleased by the outcome.

"This is exactly what I predicted would happen," he says. "I credit John Suthers for saving free speech in this instance and saving taxpayers thousands of dollars."

He gives much of the credit for the speedy resolution to the ACLU. "Once the magazines filed the first lawsuit, the ACLU came in a few days later -- and I believe the presence of the ACLU, with their prestige and resources, was a difference-maker in this case. That got Colorado's attention very quickly, and they realized that they were going to be litigating against the A-team with the ACLU. I think that helped immeasurably."

Now, the various parties are expressing their gratitude for Suthers' approach in a tangible way.

"Normally, we would be submitting a bill to the state for attorneys fees for filing this lawsuit in order to preserve the Constitution," Lane acknowledges. "But in this case, we said, 'State of Colorado, if you cave in right now, we won't charge you any attorneys fees.' So the ACLU waived their attorneys fees and I waived all my attorneys fees for the magazines, because it was resolved so quickly and painlessly."

In Lane's view, this approach might serve as a template for future disputes. "If the legislature does something really stupid like this and the attorney general agrees it's unconstitutional and caves in quickly, the plaintiffs will frequently waive attorneys fees and everyone goes home happy -- because freedom wins."

Continue to see the permanent injunction, plus the two lawsuits filed against the marijuana-magazines-as-porn statute.

 

Marijuana Magazine Law Permanent Injunction

Marijuana Magazines Complaint

Bookstores Complaint About Marijuana Magazine Rule

More from our Marijuana archive: "Marijuana magazines as porn rule declared unconstitutional by state attorney general."


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