Last week, we told you about a lawsuit filed by several pot publications over a portion of a newly signed law that essentially treats marijuana magazines like porn. Now, this portion of the statute has attracted another suit, which tackles the issue from a different angle.
The plaintiffs this time around include major booksellers in Colorado, such as the Tattered Cover -- and the complaint is being handled by the ACLU of Colorado. See the suit and get more details below.
As we've reported, the law originally known as House Bill 13-1317 calls for "a requirement that magazines whose primary focus is marijuana or marijuana businesses are only sold in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present."
In other words, a convenience store wanting to stock weed-oriented publications won't be able to do so in standard racks easily accessible to customers. Rather, issues will be next to porn mags, with their covers presumably shielded to protect children -- and customers will have to ask clerks to grab copies for them.
Constitutional complaints quickly arose over this edict, but it remained in the final version of the bill. Immediately after it passed, attorney David Lane sent an e-mail on the subject to Colorado Attorney General John Suthers. It reads in part, "My own personal belief is that this is a blatant First Amendment violation. It has apparently passed muster with the House and Senate and the governor will be signing it shortly. Please inform Governor Hickenlooper that if this is signed into law, he can expect a First Amendment law suit filed promptly."
Lane was as good as his word. The complaint was filed last week on behalf of Trans-High Corporation, parent company of High Times magazine, and two Colorado publications, The Daily Doobie and The Hemp Connoisseur, also known as THC Magazine.
This passage provides a neat synopsis of the lawsuit's arguments:
Plaintiffs bring this action for the constitutional injuries they are sustaining, and imminently will sustain, upon Defendants' unjustified and over-broad restrictions on Plaintiffs' First Amendment rights. The Defendants, acting under color of state law, have placed undue and burdensome restrictions on the placement and display of Plaintiffs' marijuana-based publications, based on their content, in violation of Constitutional law.
The new complaint makes similar points. An introductory passage reads in part, "Because magazines (as well as other forms of communications) devoted primarily (or even exclusively) to marijuana or marijuana businesses are not within a recognized category of unprotected speech, such as obscenity, defamation, fighting words, incitement, or true threats, the government's content-based restriction on the plaintiffs' rights to make available, allow for perusal, distribute, and sell non-commercial truthful information cannot pass constitutional muster."
Why are the booksellers joining the fight?
Says ACLU of Colorado legal director Mark Silverstein, "We are representing the booksellers and newsstands that will have to determine which magazines are targeted, and take those magazines and do something different with them than they're doing now. So the way our clients are adversely effected is different from the way magazine publishers are adversely effected."
An example? "It's unclear right now what the statute means when it says 'behind the counter,''" he explains. "And it's also unclear what the statute means when it says the targeted magazines are to be only sold behind the counter. Does 'sold' mean they are also targeting free weekly magazines that might be viewed as focusing on marijuana?"
Likewise, questions remain about individual editions of broader-interest magazines that look at marijuana. "Would a special issue of Time magazine that's focusing on marijuana or the legalization movement or something about enforcement come within the purview of this new statute?" Silverstein asks. "And if there were a magazine that was devoted to the potential dangers of marijuana and persuading kids they should stay away from it, would it have to be kept behind the counter, too?"
Silverstein thinks so. "The way the statute is written, it would require that kind of magazine to be kept behind the counter as well. And surely the legislature wasn't intending to shield kids from anti-marijuana educational materials."
Just as worrisome for Silverstein is the prospect of what he refers to as "self-censorship." In his view, "there's always the fear that some newsstands or booksellers, concerned about possibly violating the law, will err on the side of caution and hide from public view magazines that aren't actually covered by the law. They may go too far in order to comply with a law whose boundaries aren't really clear."
And that's not to mention the slippery-slope argument.
"The statute raises a whole host of First Amendment issues," Silverstein allows. "It appears the legislature thought it would not be a good idea for people under 21 to read about marijuana," which remains illegal for anyone younger. "But if the legislature can restrict the availability of information about marijuana, can it also restrict the availability of information about other subjects disapproved for people under 21, like alcohol?"
The suit is meant to prevent spin-off laws from being considered even as it attempts to block the current one. As Silverstein points out, "We intend to ask for a court order to stop this from going as far as the rulemaking stage" -- a process that is moving forward on an emergency basis, since Amendment 64 calls for regulations to be in place by July 1. "And attorneys in our office will be speaking with the attorney general."
Should attorney general Suthers choose to fight on behalf of the statute, the ACLU lawsuit has been shaped to work in concert with the one previously filed by Lane. "We have designated our case as related to the already pending lawsuit," Silverstein says, "and we fully expect the cases will wind up in the same courtroom before the same judge and be litigated together."