Last week, we noted a section of the main bill to regulate Amendment 64 that essentially treated marijuana magazines like porn. In the days that followed, High Times warned that a lawsuit would be in the offing if the language was included in the final version -- but it was.
Now, attorney David Lane confirms that he'll sue the State of Colorado over the edict shortly after Governor John Hickenlooper signs it into law.
As we've reported, House Bill 13-1317, the aforementioned A64 legislation, whose passage became official yesterday, 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.
Marijuana lawyer Warren Edson was left slack-jawed by this requirement. 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?'"
Enter attorney Lane, who says he's been "contacted by some marijuana-oriented publications that are very concerned they're being treated like pornography." Hence an e-mail to Colorado Attorney General John Suthers yesterday evening. It reads:
Attorney General Suthers --
Apparently HB 13-1317, specifically 12-43.4-202. Powers and duties of state licensing authority on regulating marijuana, (3)(c) (I)(H) has a provision that says the following:
(H) 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.
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.
Thank you.
Lane believes such a suit would be "sort of a slam dunk as far as I'm concerned." Why is he so confident?
Continue for more about a promised lawsuit against the marijuana-magazines-treated-like-porn law. In Lane's words, "I don't think there is any precedent that would support this. The government is permitted to regulate time, place and manner of speech, but they're not allowed to regulate content of speech that is not obscene speech."
He concedes that the feds "can regulate commercial speech -- so, for example, we have bans on cigarette ads on TV and things of that nature. But this is not that. These are magazines that have ads, but they also have content. This is a form of political speech, and once the government starts regulating the content of political speech, the First Amendment is violated."
The question about whether marijuana talk is political in nature has already come up in the context of the annual 4/20 celebration at Civic Center Park. As Patricia Calhoun has reported, the event has previously fallen under the free-speech umbrella. As a result, organizers haven't been required to pay a fee for an assembly permit, and no damage deposit is required. Beyond providing porta-potties and purchasing insurance, Parks and Recreation spokesman Jeff Green told Calhoun that the main expense was typically an electricity charge of around $500. But if 4/20 is redesignated as something other than a free-speech gathering, the costs go up exponentially -- likely to well over $10,000.
To Lane, such a switch -- one that became a subject of debate after gunshots ended this year's bash prematurely -- would be highly problematic. "If they tried to shut down 4/20 with big licensing fees, they're going to federal court," he predicts. And a similar fate could lie ahead for the State of Colorado over the magazine rule, he believes.
"There are lines, and they get blurred," he allows. "These marijuana magazines do have ads, so part of it is commercial speech. But another part of it is the conveyance of ideas -- not just how to grow better weed, but also how to push for legalization federally. And if a government wants to play fast and loose and get close to the line, they're going to end up in federal court."
Such an outcome was entirely predictable, in his view. "This is so blatantly unconstitutional that I'm thinking, 'Don't they have lawyers they get advice from before they draft these bills?' And the answer to that is 'yes,' but apparently they don't listen to them. My entire career has been based on people ignoring the law...."
Moreover, Lane sees little way for Governor Hickenlooper to avoid litigation.
"It's almost too late," he says. "He pretty much has to sign the bill. The legislature is no longer in session, so there's no going back and amending it. That's what's on his desk. So I think what's going to happen is, he'll sign it and I'll file a lawsuit. Then, the state will probably concede that it's unconstitutional and stipulate to the issuance of a federal court injunction that will only pertain to that section of the bill. And then taxpayers, as usual, will pay my attorney's fees."
Of course, there's another possibility: The State of Colorado could choose to take on Lane rather than surrendering. And there's no question Attorney General Suthers dislikes Amendment 64, as he made clear yesterday.
Continue for more about a promised lawsuit against the marijuana-magazines-treated-like-porn law.
After the final passage of 13-1317, Suthers issued the following statement:
"I believe that Amendments 64 is bad public policy, and that as a practical matter, it is difficult to do a good job of implementing bad public policy. However, given that the voters directed the Legislature to implement Amendment 64, and given that the marijuana industry had an aggressive and well financed lobbying effort, I believe the Legislature did a credible job of implementing most of the Marijuana Task Force's recommendations. I am particularly relieved that the General Assembly passed a marijuana-impaired driving statute. I was disappointed that the Legislature did not adequately deal with the issue of child endangerment from marijuana use.
The Attorney General's Office will continue to work with our state client agencies to implement regulations promulgated pursuant to the legislation passed during the 2013 session."
Despite Suthers's preference for marijuana laws that are restrictive rather than liberal, though, Lane doubts the attorney general will put a lot of effort into defending placing marijuana magazines behind the counter. "I think he's realistic. He's looking at a 57-page bill that's got good parts and bad parts, so generally, I guess he's okay with it. But I think he'll recognize that this part of it is unconstitutional."
He's been surprised before, though. "When they want to fight about a statute, they fight tooth and nail -- like with the Independence Institute suit, which we won a couple of months ago.
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"That statute barred petition circulators from being paid by the signature," he continues, "but it was declared unconstitutional. Judge Philip Brimmer struck it down, which is really rare -- it's unusual for a state law to be struck down in federal court. And that fight cost the state a million dollars."
He believes a battle over the magazine rule could be just as pricey. "It could cost the state hundreds and hundreds of thousands, if not a million dollars. If they're smart, they'll cave."
More from our Marijuana archive: "Marijuana: High Times will likely sue if treat-pot-mags-like-porn provision goes forward."
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