By DAVID H. DONALDSON, JR.
Several states, including Nevada (think Las Vegas) and Texas neighbors New Mexico, Colorado and Arkansas, have legalized the recreational use of marijuana in those States. Many others have legalized the use of marijuana for medical purposes. Texas, however, has not legalized marijuana for broad medical use (it has a very narrow law, the 2015 Compassionate Use Act, that authorizes the use of low THC CBD to treat epilepsy under very stringent conditions) and certainly not for recreational use. Yet some Texas newspapers are being approached about advertising the use of marijuana in other states where it is legal. Can they do it legally?
First let us set some parameters: no high THC marijuana use is legal in Texas. So any advertising for marijuana distribution or sale in Texas would be illegal under Texas law. But what about other states? Could a marijuana dispensary in Nevada, where marijuana is legal, advertise its services to Texas residents encouraging them to come to Nevada and visit the dispensary? Or could a Las Vegas resort place an ad in a local Texas paper offering a “weed weekend” with discount stays and shuttle trips to and from the resort to a marijuana dispensary? Does the First Amendment protect such speech in Texas?
Probably not. There is some Supreme Court precedent that recognizes that the First Amendment protects advertising of conduct that is legal in the state it is offered but is illegal in the state in which it is advertised. In the 1975 U.S. Supreme Court decision of Bigelow v. Virginia, a newspaper in Virginia, where abortion was illegal at the time, published an advertisement for a New York Clinic that offered abortion services at the clinic in New York, where abortion was legal. When the Virginia publisher was convicted and fined for violating a Virginia state law that made it a crime to encourage abortions, he challenged his conviction on the basis that the First Amendment protected his right to advertise in his paper in Virginia a service that was legal in New York. The US Supreme Court agreed and reversed the conviction, holding that the First Amendment “should prevent States from prohibiting advertisements of products or conduct that is clearly legal at the place advertised.”
Does that answer the question? The principle in the Bigelow case would argue that the First Amendment would protect marijuana advertising as long as it was legal in the place where it was offered. The First Amendment protects advertising of lawful products and services. But First Amendment precedent also recognizes that the Federal government and the states have more leeway in controlling the advertisement of illegal products.
The problem is that even though state law may excuse possession and sale of marijuana, federal law does not. Under federal law marijuana is a Schedule One Controlled Substance whose possession and use is illegal. Federal law also makes it “unlawful for any person to place in any newspaper, magazine, handbill, or other publications, any written advertisements knowing it has the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule 1 Controlled Substance [which includes marijuana].” Advertising the opportunity to receive or buy medical or recreational marijuana in a state where state law makes it legal is still advertising conduct that federal law says is illegal. And the Supreme Court has recognized that the First Amendment doesn’t protect advertising for illegal conduct.
So how come in states where state law makes marijuana legal but federal law makes it illegal people are advertising and selling medical or recreational marijuana? Congress has the right to make marijuana use illegal even if a state says it should be legal. In the 2005 case of Gonzales v. Raich the U.S. Supreme Court ruled that the Commerce Clause allowed Congress to make any use or possession of marijuana illegal even though a State may decide to make the production and use of medical marijuana legal. So federal officers can enforce the law if they want.
Since then, however, Congress has taken action to protect state-authorized medical marijuana use. Since 2014 Congress has included an annual amendment to the federal spending bill that prohibits the U.S. Department of Justice from using federal funds to interfere with state-legal medical marijuana programs. The amendment has the effect of preventing prosecutors from bringing charges against state-legal medical marijuana businesses and those who provide products or services to them.
But that the amendment does not protect state-legal recreational marijuana programs. For that the Justice Department issued a memorandum in 2013 called the Cole Memorandum in which the Justice Department urged prosecutors, as a matter of prosecutorial discretion, to let local and state authorities handle the issue of recreational use of marijuana. That policy effectively left state authorized recreational marijuana programs alone. And several states, most recently Michigan, have enacted laws authorizing recreational use of marijuana. But the federal law banning marijuana possession, distribution and use is still out there. Recently the Justice Department has changed this policy and encouraged enforcement of the law against recreational marijuana use everywhere. Local U.S. Attorneys can make individual decisions about the prosecution priorities of their office and decide not to be aggressive in enforcing the federal marijuana law, but they still answer to the top.
Given that there are 29 states and the District of Columbia that have authorized some form of medical or recreational marijuana use, there may be some incentives for Congress to fix this issue and clearly authorize advertising for both recreational and medical use of marijuana where it is legal under state law. But that hasn’t happened yet.
Bottom line: right now marijuana possession and use in Texas is illegal under state law with a very slight exception (and an extremely small market). It is illegal under federal law as well. While there is an argument that advertising a product or service that is legal in another state (but not under federal law) might have some First Amendment protection, the smart money says wait until we get a better signal from the Supreme Court, Congress or the Justice Department before taking that step.
David H. Donaldson, Jr. is a retired attorney who currently teaches media law to journalism students in the College of Communication at The University of Texas at Austin.