Demanding Silence: The Continuing Temptation

temptation to silence

The politics of marijuana use continue to take shape. In large part they consist of efforts by a broad network of activists to rally the populace in end-runs around the political/governing class. That is, legalizers have to persist in overcoming many levels of resistance amongst elected officials and their appointees, who think of themselves as pharmaceutical gatekeepers.

One of those levels of resistance that continues even after legalization is the idea that publishing, writing, or reading about the newly-legal substance is disreputable, and the temptation to demand silence.

In the Havsy v. Department of Health decision on January 8, 2015, by Judge Elizabeth Martin, gatekeepers who succumbed to this temptation on behalf of the state of Washington are rebuked. The judge ruled that the state’s “blanket prohibition against any advertising by medical providers … amounts to an unconstitutional restraint of commercial free speech” in violation both of the state constitution and that of the United States.

This decision came about because Washington took an unusually restrictive approach toward advertising. The pertinent statute said that “a health care professional shall not … include any statement or reference, visual or otherwise, on the medical use of cannabis in any advertisement for his or her business or practice.” Other states, which haven’t been as draconian, may not have much to fear from judicial review along these lines.

 

Some History

Washington was quite early among the states that have legalized medical use of marijuana. California was the first, in 1996, and Washington (as part of a troika with Oregon and Alaska) followed just two years later.

The National Survey on Drug Use and Health reported that for 2010 and 2011 the average number of people in the state of Washington who used marijuana/hashish within a given one-month period was 556,000. The low end of the 95% confidence level was 475,000. If those figures are in error, it is on the low side; some scholars have argued that NSDUH systemically undercounts.

The Havsy case arose in that era, when doctors remained critical to legal marijuana use in the state. In 2011, Scott Havsy, an osteopath, published an advertisement that included an image of a marijuana leaf, and that stated (accurately) that Havsy could provide the necessary medical examination as a preliminary to lawful use of marijuana.

In July 2012, the state’s Department of Health filed charges against Havsy alleging unprofessional conduct. He responded by bringing an action before the Superior Court asking that the prohibition on a doctor’s use of such references be struck down.

While this decision was pending, as our readers are surely aware, the voters of that state pushed the bounds of lawful marijuana-use much further. Indeed, Initiative 502, which legalized small amounts of marijuana for recreational use, was originally submitted to the Secretary of State in the summer of 2011, earning it its place on the ballot in November 2012.

Pursuant to the victory of the proposition on that date, doctors are no longer gatekeepers, and the salience of the specific issue faced by Judge Martin may have waned a bit.

 

Detailed and Clear Analysis

Still, Judge Martin’s analysis of the constitutional issue is detailed and clear. She adopted an analytical framework set out by the U.S. Supreme Court in 1980, known as the Central Hudson test. This test has four parts:

  1. Does the speech at issue concern a lawful activity and is it truthful (not misleading) about that activity?
  2. Whether there is a substantial government interest in restricting it?

If the answer to either question is “no,” then the inquiry stops and the restriction is upheld. But if both questions can be answered “yes,” then the court reviewing a challenge proceeds to the following points:

  1. Does the restriction directly advance the asserted government interest and
  2. Is it not more extensive than necessary to serve that interest?

Unless the legislation passes both of these tests, the law fails. The idea, then, is that a law that restricts the speech of an individual or business trying to sell a lawful product, and telling the truth about that product, should justify itself both by serving an important end and by being well adapted to doing so.

The provision of the medical exam necessary in order to receive a “certificate of use” is a lawful activity, and the court found nothing misleading in Havsy’s reference to that service. There is a substantial government interest, though, in regulating this activity, so the case has to be decided by prongs three or four. Judge Martin relied principally on the fourth prong. The blanket prohibition quoted above “is far more extensive than necessary” and it would limit public information about available providers to whatever individuals can discern by word of mouth. This Judge Martin deemed telling.

Furthermore, she wrote, the statute as written would chill even “informational speech aimed solely at public education,” which could be non-commercial fully-protected speech. Thus, even aside from Central Hudson, the statute fails as overbroad.

 

Comparisons

Kathleen Ann Ruane, a free-speech authority who works for the Library of Congress’ Congressional Research Service, wrote recently that although the Central Hudson standard often used in commercial-speech cases is somewhat less protective of free speech than is the standard applied to political argument or artistic expression, it is still rigorous enough that the Supreme Court has frequently used it to strike down federal and state restrictions.

But again: assume that Judge Martin’s analysis of this particular statute under Central Hudson is generally accepted as authoritative. It won’t have much direct applicability in other states, because the other states moving toward freedom of marijuana use haven’t imposed analogous strictures, or have already abandoned them.

William Panzer, an attorney with California NORML, said in a recent interview that California has no restrictions on physician’s ads specific to marijuana “whatsoever.”

 

Colorado Went Through This

Colorado did have a ban that seems in some respects analogous, but it didn’t last long. Indeed, it never properly came into effect. After the passage of an initiative legalizing recreational use, certain parents’ groups complained that various magazines promote the stuff, and that those magazines (the best known of which was High Times) should not be displayed by stores in ways that leave them accessible to impressionable youngsters.

The legislature passed a bill that would have required booksellers to treat High Times like pornography. Any magazine, said the bill, whose “primary focus is marijuana or marijuana businesses,” may be sold only “in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present.” This was signed into law on May 28, 2013, and was scheduled to take effect July 1, 2013. But it never did. Booksellers challenged the constitutionality of the law immediately.

And, almost as immediately, the state agreed. Attorney General John Suthers understood that the state was in a constitutionally untenable position. On June 10, 2013, Colorado stipulated to a judgment that the limitation of magazine placement was “void and unconstitutional because it violates the First Amendment to the United States Constitution.” There have been no further efforts to keep marijuana officially hush-hush in Colorado since.

The broad lesson here is that Colorado’s official class succumbed to the same temptation as Washington’s, but overcame it more quickly. Since the official class in other states is likely to succumb to similar temptations now and then, it is good to know that appeals to the judiciary can be successful.

Christopher C. Faille, a Jamesian pragmatist, was one of the first reporters taking the hedge fund industry as a full-time beat, at the turn of the millennium, with HedgeWorld. His latest book, Gambling with Borrowed Chips, treats of common misunderstandings of the crisis of 2007-08.

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