As of this year, four states and the nation’s capital have legalized marijuana for recreational use. With Colorado alone selling $700 million worth of marijuana in 2014, it is no surprise that entrepreneurs are looking to capitalize on the cash crop. Like most businesses, these companies would like to increase their sales through advertising. Unfortunately for them, the current legislation regulating Amendment 64 places heavy restrictions on marijuana advertisements, banning any “mass-market campaigns that have a high likelihood of reaching minors.” The Colorado Department of Revenue’s Marijuana Enforcement Division, who the legislature granted with regulatory power, interpreted this to mean that advertisers need to show “reliable evidence that no more than 30 percent of the audience… is reasonably expected to be under the age of 21.” It also banned any advertisement “that is visible to members of the public, from any street, sidewalk, park or other public place.” Unsurprisingly, this restriction is being challenged for violating the First Amendment.
As Forbes reports, UCLA Law Professor Eugene Volokh believes there is no First Amendment protection because of the federal prohibition on marijuana. But recently three prominent Senators introduced a bill to legalize medical marijuana at the national level. Given that it seems inevitable that the federal prohibition on recreational marijuana will be over in the not-so-distant future, it is worth asking the question: should marijuana advertisements be protected under the First Amendment? I ask not from a constitutional perspective, but rather as an advocate looking to end the War on Drugs. I argue that gaining First Amendment protection for selling marijuana will be detrimental to ending prohibition of marijuana and other drugs.
If marijuana retailers win First Amendment protection for advertising marijuana, anti-Drug War advocates will have won the battle but lost the war. Legalization supporters often argue that the harmful effects of drugs can be better addressed through regulation. The argument is that criminalizing drug use does not actually reduce drug use. Rather, it makes drug use more dangerous because it allows for drugs to be laced with harmful substances, treats addicts as criminals, and opens up a black market for organized crime. Some even argue that ending prohibition could actually decrease drug use, pointing to Portugal’s successful decriminalization efforts. Since the entire point of advertisement is to increase sales and usage, efforts to decrease drug use will be derailed if advertisement is allowed.
It may be argued that marijuana is less harmful than alcohol and therefore should receive the same advertising privileges. I agree. But this can be accomplished by passing appropriate legislation. It is not that marijuana advertisements in and of itself would be detrimental to the legalization movement. Rather, the harm comes from First Amendment protection and the establishment of an undesirable precedent: if a state wishes to legalize any drug, it must allow for advertising. This precedent would not likely distinguish between marijuana and cocaine. It is hard to imagine we could legalize cocaine to accomplish the goals of decreasing irresponsible drug use and treating those suffering from addiction if the next Super Bowl advertisement could feature a polar bear blowing a line of powder at the North Pole.
Even those who believe that we should limit legalization to marijuana should be skeptical of First Amendment protection for marijuana advertisement. While the legalization movement has seen tremendous success in the last couple years, there is a long way to go. States on the fence about legalization may hesitate to legalize marijuana if it also means they have to allow advertisements. Kevin Sabet, the former drug policy advisor to the White House and co-founder of the anti-legalization group Smart Approaches to Marijuana, believes the biggest concern with legalization is corporate advertising and the inability to promote moderate consumption. Proponents of the Drug War will have more anti-marijuana rhetoric, and will say that advertisements will be directed at kids and increase youth use. To be fair, the rhetoric may not be all that inaccurate given the history of alcohol and tobacco advertisements.
Under the Supreme Court’s current doctrine governing commercial speech, it seems unlikely that Colorado’s laws against marijuana advertising would pass Constitutional scrutiny. That said, advocates should think hard before flexing their First Amendment muscle. The War on Drugs continues to take a toll on people with addictions who are treated as criminals and marginalized communities suffering from mass incarceration. The minimal gains for free speech that would mostly benefit wealthy entrepreneurs, do not outweigh the risk of losing any momentum that advocates have gained in ending the War on Drugs.