First Amendment Lawsuits Threatened Over ‘Pot Pornography’ ProvisionBy Thomas H. Clarke | The Daily Chronic May 10, 2013
DENVER, CO — A Denver attorney says he plans to file a First Amendment lawsuit against the government of Colorado if Governor John Hickenlooper signs a bill passed this week by the state legislature that requires marijuana magazines to be treated like pornography — placed behind the counter at retail stores.
The unusual provision to treat pot magazines like pornography was added last week by a Senate committee, making Colorado the first — and only — state to require stores that allow entry to shoppers under age 21 to place pot magazines behind the counter.
Supporters of marijuana legalization point out that tobacco and alcohol magazines are not subject to such scrutiny.
“I have no problem with keeping High Times behind the counter, as long as its displayed there next to Cigar Aficionado and Beer Advocate,” said one Denver resident. ”But if those magazines are not kept behind the counter, neither should High Times.”
Denver attorney David Lane, who represents the Daily Doobie and Hemp Connoisseur, says if the ‘treat pot as pornography’ rule goes into effect, he is prepared to launch a lawsuit claiming his clients’ First Amendment rights are being violated.
“My own personal belief is that this is a blatant First Amendment violation,” Lane wrote in a letter to Colorado Attorney General John Suthers. “Please inform Governor Hickenlooper that if this is signed into law, he can expect a First Amendment law suit filed promptly.”
Another attorney, David Holland, called the magazine restriction “patently unconstitutional” and said there’s no legal precedent for treating pictures of a drug as obscene.
“It is a content-based restriction that violates freedom of speech,” Holland said, adding that he would likely also file a First Amendment lawsuit.
Holland represents High Times magazine, which has never been required to be kept behind the counter since its first issue was published in 1974.
The unusual provision to treat pot magazines like pornography was a late amendment introduced by Republican Rep. Bob Gardner to Colorado’s bill to establish a regulated marijuana market for adults, which was approved on the final day of the legislative session.
Gardner insisted his magazine limit should be included in Colorado’s final pot regulation. He said many marijuana magazines should be considered commercial speech, like advertisements for the drug, and therefore subject to increased state regulation.
“As we legalize marijuana, I think we can also control – in time place and manner – how it is advertised. I think that it’s constitutionally defensible,” Gardner said.A64 , Amendment 64 , Amendment 64 implementation , Amendment 64 Implementation Task Force , High Times