DENVER – The Colorado Department of Revenue, which is to regulate cannabis licensing, production and retail sales, has suspended a provision in a broader law passed this year that sought to restrict the display of marijuana-themed magazines and literature. But that reprieve may be temporary.
House Bill 1317, signed into law by Gov. John Hickenlooper, would have required bookstores, newsstands and stores to place cannabis publications behind the counter – basically away from public view. The exception was an establishment where no one under age 21 would enter.
“The idea that stores can prominently display magazines touting the joys of drinking wine and smoking cigars, yet banish those that discuss a far safer substance to behind the counter, is absolutely absurd,” declared Mason Tvert of the Marijuana Policy Project.
The law provision slipped through the legislature and past the governor, but opponents raised concerns that it infringed on First Amendment rights.
Two lawsuits were filed in federal court against the state by American Civil Liberties Union, representing booksellers, newsstands and stores, and attorney David Lane, whose clients include a number of publications focused on marijuana.
“When government decides it doesn’t like an idea or disagrees with content and then acts to restrict its reach, that is unacceptable censorship,” said ACLU of Colorado Legal Director Mark Silverstein.
“Clearly, this is speech protected by the Constitution,” said Joyce Meskis of the Tattered Cover Bookstore, one of the ACLU lawsuit plaintiffs. “It has been sold, borrowed and read by people who have had rightful access to this material for years and years. To limit this speech now would be a travesty.”
In response to the lawsuits, the Marijuana Enforcement Division under the Department of Revenue declared an emergency ruling that “…such a requirement would violate the United States Constitution, the Colorado Constitution” and other state laws.
In a more definitive statement, Colorado Attorney General John Suthers said, “No magazine whose primary focus is marijuana or marijuana businesses is required to be sold only in retail marijuana stores or behind the counter in establishments where persons under 21 years of age are present, because such a requirement would violate the United States Constitutions, the Colorado Constitution and Section 24-4-103(4)(a.5)(IV)” of the Colorado Revised Statutes.
The statement was welcomed by Tvert, who was spokesman for the Amendment 64 ballot initiative, which voters statewide passed last year.
“The fact that legislators passed this rule despite being informed it is a gross violation of the U.S. Constitution demonstrates the bigotry that still exists in regards to marijuana,” he said. “It is time for our elected officials to get over their reefer madness and recognize that the majority of Coloradans – and a majority of Americans – think marijuana should be legal for adults.”
However, the Department of Revenue, which will define and enforce the marijuana regulations, is now devising emergency rules without public input in order to meet the July 1 deadline. The rules may be revised after a public hearing in August.
During the court hearing Thursday, Lane said, “There is a fear that what the Department of Revenue giveth, the Department of Revenue may taketh away,” according to the Denver Post.
Though the law is temporarily suspended, Senior U.S. District Court Judge Richard Matsch is expected to make a more definitive ruling of its constitutionality after state has filed its response at the end of July.
“The First Amendment bars the government from picking and choosing what information the public may see or browse merely because the legislature thinks it focuses on an undesirable act,” said David Horowitz, executive director of the Media Coalition.
“Otherwise, the legislature could force booksellers to restrict access to books, magazines and other media that focus on wine, beer, driving or any other activity that is illegal for adults or minors.”