Raising worrisome First Amendment issues, U.S. Attorneys are getting ready to go after newspapers, radio stations and other outlets which accept advertising for California’s medical marijuana dispensaries, as the Obama Administration opens up another front in its ongoing war against medicinal cannabis.
After announcing earlier this month that landlords could have their property seized if they rent to dispensaries, the Administration seems to be including media outlets in its threats, as well, reports Michael Montgomery at California Watch.
Marijuana advertising is the next area U.S. Attorney Laura E. Duffy is “going to be moving onto as part of the enforcement efforts in Southern California,” she said. Duffy, whose district includes San Diego and Imperial counties, said she couldn’t speak for the other three federal prosecutors in the state, but noted they have coordinated their efforts thus far.
|U.S. Attorney Laura Duffy is threatening newspapers and radio stations which run medical marijuana ads|
“I’m not just seeing print advertising,” Duffy said in an interview with California Watch and KQED. “I’m actually hearing radio and seeing TV advertising. It’s gone mainstream. Not only is it inappropriate—one has to wonder what kind of message we’re sending to our children—it’s against the law.”
Duffy didn’t express any concern for the messages being sent to our children by the endless stream of ads for psychiatric drugs on TV, but then again Big Pharma’s drugs are OK, since they are legal and official and after all there aren’t that many overdose deaths
, now are there?
According to federal law
, placing ads for illegal drugs, including marijuana, in “any newspaper, magazine, handbill or other publication” is prohibited. The law could conceivably even extend to online ads; the U.S. Department of Justice just shook Google down
for half a billion dollars
for selling illegal ads linking to online Canadian pharmacies.
|Voice of San Diego|
|Duffy primly noted that she also has the power to seize property, or to prosecute in civil and criminal court|
Duffy said that assault on media outlets would start with “going after these folks with ... notification that they are in violation of federal law.” She primly noted that she also has the power to seize property, or to prosecute in civil and criminal court.
The U.S. Supreme Court “generally seems to take a dim view of a total prohibition that prevents any adult from seeing something just because some minors see it,” according to Seattle-based lawyer James E. Lobsenz, but with no precedent case directly on point, anything could happen.
Publishers should possibly be worried, according to William G. Panzer, an attorney specializing in marijuana cases. But Panzer said he isn’t aware of any appellate cases addressing this part or the law.
“Tehnically, if I’m running the newspaper and somebody gives me money and says, ‘Here’s the ad,’ I’m the one who is physically putting the ad in my newspaper,” Panzer said. The law targets anyone who “places” an illegal ad in a newspaper.
“I think this could be brought against the actual newspaper,” Panzer said. “Certainly, it’s arguable, but the statute is not entirely clear on that.”
Violators could be sentenced to a maximum four years in prison for a first offense, according to Panzer, with up to eight years for someone with a prior felony conviction.
|The Sacramento Bee|
|Attorney William G. Panzer: “I think this could be brought against the newspaper”|
An exception is made in federal law for ads that advocate the use of illegal drugs but don’t explicitly offer them for sale. Newspapers could argue they have a right under the First Amendment to run the ads, and any “prior restraint” before publication is itself illegal, Panzer said.
But Duffy said she believes the law gives her the right to go after newspaper publishers or TV station owners.
“If I own a newspaper ... or I own a TV station, and I’m going to take in your money to place these ads, I’m the person who is placing these ads,” Duffy said. “I am willing to read (the law) expansively and if a court wants to more narrowly define it, that would be up to the court.”
Ngaio Bealum of West Coast Cannabis magazine, which runs dispensary ads, said it was “misguided for the Department of Justice to come after people who are following state law and doing well for the economy in a recession.
“We’re just in doctor’s offices and cannabis collectives, where you have to be 18 years old or where you have to be a patient,” Bealum said. “We’re not targeting anyone but cannabis patients.”
Duffy claimed promotions like coupons, bring-a-friend deals, and t-shirts are “in large part directed at our youth and children.”
“The good intentions behind the law have almost completely been taken over by people who are trying to use that permission law to get rich to distribute marijuana and traffic drugs to people who aren’t sick, to our youth and to people who are using drugs on a recreational basis,” she said, not bothering to reveal the mysterious source of her sudden medical expertise.
Dispensary ads, which cost $2,000 a page, allowed the Sacramento News & Review to hire additional reporters during a recession.
“I don’t see how the News & Review running medical-marijuana ads is any different from TV stations running massive amounts of commercials for pharmaceutical companies selling drugs,” wrote Jeff vonKaenel, CEO and majority owner of the paper, in May 2010.
In an interview about Duffy’s new statement, vonKaenel said he was “stunned by that interpretation of the First Amendment,” adding that his publications “receive quite a bit of revenue from (dispensaries) and it would have a detrimental impact” if he was forced to stop accepting the ads.
Panzer said he doesn’t believe the federal government can really shut down the medical marijuana industry, even if it wins short-term victories by targeting big dispensaries and newspapers. Given the already huge size of the industry, Panzer called efforts to shut it down “a losing proposition.”
“The government is trying to put the genie back in the bottle,” Panzer said.