After we reported about an element of the main marijuana bill that treated pot magazines like porn, a spokesman for High Times announced an intent to sue if the section wasn't cut. Shortly thereafter, attorney David Lane said a suit would be forthcoming if the edict became law.
Lane wasn't bluffing. Mere days after Governor John Hickenlooper signed the bill containing the passage, he filed suit on behalf of High Times and two other mags. Details, the documents and more below.
As we've reported, the law originally known as House Bill 13-1317 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 weed-oriented publications 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.
Marijuana lawyer Warren Edson was left slack-jawed by this requirement. Proponents of Amendment 64, which allows adults 21 and over in Colorado to use and possess small amounts of cannabis, "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 Edson's 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 shared 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 added.
One more Holland quote offered by Skye: "It is a content-based restriction that violates freedom of speech."
Attorney Lane wholeheartedly agrees, and on the evening of May 8, immediately after HB 13-1317's passage by the state legislature, he sent an e-mail to Colorado Attorney General John Suthers saying so. After quoting the aforementioned passage from the legislation, Lane wrote, "My own personal belief is that this is a blatant First Amendment violation. It has apparently passed muster with the House and Senate and the governor will be signing it shortly. Please inform Governor Hickenlooper that if this is signed into law, he can expect a First Amendment law suit filed promptly."
And prompt it was.
Continue for more about the lawsuit, including original documents and more. Joining High Times parent company Trans-High Corporation in the complaint, filed in United States District Court, are two Colorado publications, The Daily Doobie and The Hemp Connoisseur, also known as THC Magazine. Lane says each of the publications contacted him independently.
Although accompanied by a motion for a preliminary injunction and a brief supporting it, the main suit is just six pages long -- modest by the standards of such documents. Here's a paragraph that neatly synopsizes the claims:
Plaintiffs bring this action for the constitutional injuries they are sustaining, and imminently will sustain, upon Defendants' unjustified and over-broad restrictions on Plaintiffs' First Amendment rights. The Defendants, acting under color of state law, have placed undue and burdensome restrictions on the placement and display of Plaintiffs' marijuana-based publications, based on their content, in violation of Constitutional law.
Lane says he chose not to belabor his points in part because he believes less and more -- but also because he sees the violations at the heart of the passage to be "very, very simple."
The major theme, in his view, "is that 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."
Examples? "From the U.S. Supreme Court's standpoints, obscenity can be regulated, and anything that creates a clear-and-present danger of imminent violence can be regulated -- like yelling fire in a crowded theater. And reasonable time, place and manner restrictions can be put on speech -- meaning you can't do a demonstration outside a hospital zone at three in the morning, or something like that.
However, Lane goes on, "those time, place and manner restrictions have to be content-neutral" -- and in his view, the marijuana magazine restriction doesn't meet that criteria. "If all magazines had to be sold in pot shops, or all magazines had to be sold behind the counter, that would be content-neutral. But the legislature doesn't get to choose which magazines they like and which ones they don't."
Instead, he goes on, lawmakers "decided they don't like the message of marijuana and they're trying to restrict its distribution by relegating these publications to the back shelves behind the counter. So basically the lawsuit says, 'Thank you for your input, Big Brother, but we don't need your help.'"
Continue for more about the lawsuit, including the documents and more. Action on the complaint should get underway quickly, Lane believes.
"Because this is an allegation of a First Amendment violation and we're seeking a preliminary injunction, I anticipate the court will set it for hearing in the next couple of weeks," he says. "And 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."
Should the attorney general's office choose what Lane considers to be the wiser course, the temporary injunction would be put in place, "and that would enjoin enforcement of the law," he says. If not, "they could set it for trial, which would be a repeat of the preliminary injunction. But I don't see that happening. There was a similar case several years ago where the legislature mandated that all K-12 students had to say the Pledge of Allegiance in school every day. We filed a suit and the state caved right away -- they consented to a court ordering the law not be enforced and that ended it quickly, with a minimum of cost to the state."
In contrast, Lane points out, "they lost the Independence Institute case, which they fought tooth and nail, and we're now compiling our bill. And I can tell you, if they had just conceded the point early on, they would have saved a lot of money."
The bottom line from Lane's perspective? "There's no reason to litigate a case where anybody who understands the First Amendment can look at the statute and say it's unconstitutional. Frankly, I'm surprised no one in the legislature tried to put the brakes on this when it was proposed."
Here's the main complaint, a motion for preliminary injunction and a brief supporting it.
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More from our Marijuana archive: "Marijuana magazines to be treated like porn, and other oddities of main pot bill."