Can the mere image of a green leaf be considered obscene? If you think thats the kind of navel-gazing philosophical question to only be pondered by stoners, you are half right it does have to do with marijuana. But it isnt just an abstract and pointless query; its an important and relevant legal one thanks to a bizarre effort to criminalize the mere image of the cannabis plant.
The setting for this effort is Colorado. After citizens here overwhelmingly backed Amendment 64, which fully legalizes marijuana, the state is now experiencing predictable attempts to thwart voters will. The first of those was an attempt to automatically repeal the amendment if voters didnt approve a new tax to fund marijuana regulatory enforcement. The second of those has been municipal and state proposals to criminalize images like the cannabis leaf and media content about marijuana, despite the fact that access to the substance is now a constitutionally protected right in Colorado.
The good news is that the former bill died in the statehouse. The bad news is that the latter set of initiatives has already been enacted in the states biggest city and may be soon be expanded at the state level, thus potentially setting a larger First Amendment precedent allowing governments to target industries they dont like.
The history of this particular free-speech controversy dates back to 2012, when the Denver Post reported that in a vote that lasted less than a minute the Denver city council enacted a citywide ban on all outdoor medical-marijuana advertising in the city including billboards, posters, bus benches, windshield leaflets and sign twirlers. In this, the Associated Press noted the city was joining Delaware, Montana, Vermont and Washington State in regulating speech about marijuana.
Because marijuana was still only officially a medicinal substance in 2012, advocates of curtailing the marketing of medicinal marijuana could at least back then cite Americas earlier restrictions on prescription drug advertisements as historical precedent for the pot advertising ban. Referencing that history, they could additionally claim an ad ban wasnt any kind of broader and unprecedented assault on the deeper principles of free speech.
The same, however, cannot be said today in Colorado. Thanks to the statewide ballot measure in 2012, cannabis is legal not just for medicinal use but also for recreational use, meaning that new ad bans are trying to curtail speech about a constitutionally recognized consumer product.
Despite that new reality, NBC 9 News reports that at the end of the legislative session, groups supporting the continued Drug War slipped language into a last-minute bill that would force stores to hide behind the counter any magazine whose primary focus is marijuana or marijuana businesses. According to the bill language, it would also ban marijuana related pop-up ads on the Internet and also ban ads promoting any health or physical benefit claims about cannabis.
Looked at strictly through the prism of drug use, it is shockingly hypocritical that this language sailed through the Colorado legislature and now awaits Gov. John Hickenloopers signature.
It is hypocritical because the Colorado that is citing concern about drug use as justification to crack down on marijuana-related speech is also the same Colorado proudly promoting the far more toxic drug known as alcohol. Yes, among other things, Colorados professional baseball field is named after a beer company; its governor brags about building a business career off peddling alcohol; and the states craft brewing industry (which, by the way, I love) is promoted by municipal governments as an integral part of the states tourism appeal.
On the other hand, considered as a free speech issue, it is no coincidence that this is all happening in Colorado. This state has, after all, displayed an acute hostility to First Amendment principles. In only the last few years, its largest city engaged in mass arrests of protestors at the Democratic National Convention while also trying to confine First Amendment rights to fenced-in free speech zones; its state government deployedweapon-brandishing riot police against non-violent Occupy Wall Street demonstrators; and its biggest public university shut down its campus to quash the annual 4/20 protest against the ongoing Drug War.
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Marijuana opponentsâ€™ new plan: Kill First Amendment