Caution does not trump
When Colorado voters approved Amendment 64 legalizing possession, use and purchase of marijuana for recreational purposes, a legal and moral quagmire opened up. First on the list was whether and how the state’s position on marijuana would mesh with the decidedly less hospitable stance held by the federal government. President Obama dispensed with that concern, somewhat, by saying his Justice Department had other priorities, leaving Colorado to the business of crafting the rules on just how to bring a formerly illegal substance into the mainstream. The rules are many, and rightly so. Those concerning how marijuana is advertised, though, are treading too far onto freedoms firmly established in the First Amendment.
At issue are two proposed rules that would prohibit advertisers from placing marijuana ads in any publication — online or print — that “has a high likelihood of reaching minors.” While the intent of the rules is defensible, their implication for the First Amendment rights of the press, advertisers and readers is not.
Commercial speech has long been protected by the First Amendment — for those who read it and publish it alike. Regardless of the significant stigma associated with recreational marijuana use, it is now legal in Colorado and as such is fair game for advertisement.
Concern about marijuana purveyors marketing to those under age 21 is legitimate, but it is no larger a concern than that associated with alcohol — whose regulatory environment Amendment 64 was designed to emulate. Alcohol advertisement is rampant in places frequented by those under 21 including billboards, television and radio as well as general circulation newspapers and magazines. For better or for worse, marijuana advertisement should be treated the same.
The larger issue associated with underage marijuana use, as with alcohol, is enforcing the age requirement at the point of sale. That is a far more effective means of preventing underage access to the substance. Limiting advertising in such a broad and unenforceable way as the proposed rules do would be an undue infringement on consumers’ access to information about the marketplace, and on publications’ right to make decisions about their content.
As the Colorado Press Association wrote in its comments to the Colorado Department of Revenue opposing the proposed rules, “Among the freedoms of the press protected by the First Amendment (and the Colorado Constitution) is the power to exercise editorial judgment about what to publish and what not to publish. CPA members will continue to exercise that discretion responsibly; no CPA member has any interest, either ethically or financially, in publishing ads for alcohol or marijuana that are intended to appeal to readers or website visitors below the lawful age for consuming such products.”
There is an understandable over-protectiveness implicit in the proposed rules on marijuana advertising, and news outlets must exercise the discretion the CPA promises, but banning advertising based on stigma is not a valid exception to the First Amendment’s free speech protections. The rules on marijuana advertising should be adjusted accordingly.