DENVER – The state of Colorado conceded that a provision in new laws regulating marijuana violates the First Amendment rights of booksellers, newsstands and publishers that sell pot publications – and agreed that it should be scrapped permanently.
The law also limits the free speech rights of advertisers, particularly prohibiting mass-marketing campaign that could reach minors and children on websites and cell phones. That has not been legally challenged.
The state joined the American Civil Liberties Union and attorney David Lane, representing the plaintiffs, in asking a federal judge to declare Colorado’s restrictions on marijuana-related publications unconstitutional and enter a permanent order to strike the law.
“This is another important victory for the free speech rights of readers and retailers in Colorado,” said David Horowitz, executive director of Media Coalition. “All people have the right to read and share their ideas free of government interference.”
Plaintiffs’ attorneys filed a lawsuit last week seeking a permanent injunction against the law that would require marijuana-focused books, magazines and literature be placed behind the counter – like pornographic materials – in stores where individuals under 21 years are allowed.
“The agreement today confirms that the state cannot prosecute booksellers for giving their customers access to material that is fully protected by the Constitution simply because the legislature does not agree with the message,” said Joyce Meskis of the Tattered Cover Book Store.
The restriction is contained in House Bill 1317, a package of marijuana laws approved by the Democrat-controlled legislature and signed into law by Gov. John Hickenlooper.
High Times magazine’s legal counsel, David Holland, lauded the agreement reached Monday. State Attorney General John Suthers’ office indicated it would defend the law during a hearing Thursday before Senior U.S. District Court Judge Richard Matsch – but reconsidered and relented.
“We teamed up with excellent legal counsel in David Lane,” said Holland. “Even the state of Colorado quickly realized the unconstitutional nature of the restriction and took efforts to correct it by a legislative action rather than receive a scolding from the courts.”
High Times magazine posted a website message stating that those who crafted the laws to regulate retail marijuana, taskforce participants and legislators, inserted the provision to prevent children from being exposed to marijuana advertising.
“The fact that children are bombarded on a daily basis with alcohol, tobacco and pharmaceutical advertising, which promotes substances that are demonstrably harmful, obviously never occurred to Colorado lawmakers,” stated the website.
However, the 57-page package of laws includes more provisions to restrict advertising that include labeling, signage and marketing.
The laws prohibit “mass-market campaigns that have a high likelihood of reaching minors,” such as banner ads and unsolicited pop-ups on mainstream websites.
Another provision prohibits “marketing directed toward location-based devices, including but not limited to cell phones, unless the marketing is a mobile device application installed on the device by the owner of the device who is twenty-one years of age or older and includes a permanent and easy opt-out feature.”
Does that limit Tweet and email ads? That question may be answered when the Department of Revenue adopts temporary regulations to meet the legally mandated Aug. 1 deadline. Those rules may be revised after a public hearing in August.