As cannabis becomes big business, magazines, newspapers, and television stations have begun attempting to lure cannabis providers to pay for advertising space to promote their product. As you would probably expect, the laws permitting cannabis advertising are murky at best.
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Advertising material is considered commercial speech, which means it is protected by the First Amendment but does not receive the same level of protection as other forms of speech, such as political speech. In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the Supreme Court set out a four-part test to determine the validity of government regulations on advertising speech: (1) Does the advertisement involve lawful activity? (2) Does government have a substantial interest? (3) Does regulating the advertisement advance a substantial government interest? (4) Is the regulation the least restrictive means of advancing the substantial government interest?
In examining free speech rights surrounding marijuana advertising, it is important to note that the first prong of the Supreme Court’s test asks whether the advertisement involves a lawful activity. Technically, advertisements for illegal activity are not protected speech and can be altogether eliminated by government authorities. Advertisements for marijuana consumption, production, retailing, cultivation, and even tourism could all be considered illegal activity since pretty much anything related to marijuana is still a federal crime. And in fact, the Justice Department has threatened to go after broadcasters and publishers that run cannabis advertisements, though there have been no reports of the DOJ actually making good on these threats.
Even if the feds never pursue prohibition of cannabis advertising based on federal drug laws, marijuana businesses may still need to contend with obscenity allegations. Like illegal activity, obscenity does not receive First Amendment protection and so governments are pretty much free to regulate or even ban it. Obscenity has been notoriously difficult for the Court to define as is well known from Justice Stewart’s famous concurring opinion in Jacobellis v. Ohio, where he wrote that though he could not define obscenity, “I know it when I see it.”
Justice Stewart’s “know it when you see it test” was essentially the standard for defining obscene speech until the Supreme Court decided Miller v. California, which set out this three-part test: (1) the material that is prohibited must describe or depict sex in a patently offensive manner; (2) the prohibited conduct must be specifically described in the law; and (3) the prohibited material must lack any literal, artistic, political, or scientific value. If the material to be prohibited meets these three requirements, it will be deemed “obscene” and subject to maximum government regulation.
Some see cannabis advertising as right on the line between acceptable advertising deserving of limited First Amendment protection and obscenity warranting virtually no protections. This distinction is vitally important to advertisers because it means the difference between being able to run marijuana advertising free of significant governmental interference and the government being able to ban marijuana advertising outright.
In 2012, The New York Times wrote about a cannabis ad in a magazine that enticed potential buyers with “naughty nurses” who would take away the pain for those who used one company’s particular marijuana product. Though this ad objectively fails the Miller obscenity test because it is not patently offensive, it does generate concerns of how cannabis advertising with strong sexual overtones could lead to government regulation of cannabis advertising. Likening marijuana ads to off-limits “patently offensive hard core sexual conduct” seems a far stretch, but we certainly wouldn’t put it past the federal government to try its hand. Consequently, marijuana businesses should be sensitive to the foregoing issues of limited or no free speech when formulating their ad campaigns where significant federal censorship may apply.
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