Colorado: Regulators Ditch Unconstitutional Rule Treating Marijuana Mags Like Porn

DailyDoobie

By Steve Elliott
Hemp News

Marijuana publications won't be treated like pornography in Colorado after all, state regulators announced on Thursday in the face of First Amendment lawsuits.

The rule would have forced stores to keep magazines with a "primary focus" away from customers under 21 years old, reports Steven Nelson at US News. It was part of a package of Legislature-approved cannabis regulations sigend into law by Gov. John Hickenlooper on May 28.

The rule is unconstitutional and will be ignored, according to the Colorado State Licensing Authority. The authority issued an "emergency rule" saying "such a requirement would violate the United States Constitution" and Colorado law.

The Colorado Attorney General's office had input on the decision. "We support the laudable goal of keeping retail marijuana out of the hands of those under 21, but that has to be consistent with the Constitution," the attorney general's spokesperson said, reports John Ingold at The Denver Post.

"We applaud the Attorney General's decision to declare as unconstitutional this absurd rule that marijuana-related publications be treated like pornographic material," said Mason Tvert, director of communications for the Marijuana Policy Project (MPP), reports Matt Ferner at The Huffington Post.

"The idea that stores can prominently display magazines touting the joys of drinking wine and smoking cigars, yet banish those that discuss a far safer substance to behind the counter, is absolutely absurd," Tvert said. "The fact that legislators passed this rule despite being informed it is a gross violation of the U.S. Constitution demonstrates the bigotry that still exists with regard to marijuana.

"It is time for our elected leaders to get over their reefer madness and recognize that a majority of Coloradans -- and a majority of Americans -- think marijuana should be legal for adults," Tvert said.

Lawyers for the magazines and for book stores still want a federal judge to rule the law unconstitutional, arguing that Colorado regulators could later change their minds.

"There is a fear that what the Department of Revenue giveth, the Department of Revenue may take away," said attorney David Lane at a Thursday hearing on two lawsuits challenging the law.

The law prompted two lawsuits in federal court challenging its constitutionality, one of three marijuana magazines -- High Times, The Hemp Connoisseur and The Daily Doobie -- and another by booksellers across the state, backed by the American Civil Liberties Union. Both lawsuits say the law violates free speech by restricting distribution of magazines based on content.

Carolyn Tyler, spokesperson for the attorney general's office, said the decision is only temporary and could be changed during the process of permanent rulemaking, scheduled to begin next month.

Attorney Lane said prosecutors may still try to use the law to charge with misdemeanors the magazine sellers who don't keep cannabis publications behind the counter, despite the new emergency rule.

But Deputy Attorney General David Blake said the emergency rule means the law is not in effect. "There is no district attorney who has a law to enforce," Blake said.

Meanwhile, on the federal level, Senior U.S. District Court Judge Richard Matsch said he didn't need to decide the case immediately. "I don't think we have the hot breath of a district attorney on any of the plaintiffs," he said.

But Judge Matsch strongly rejected Colorado's claim that the emergency rule means the lawsuits should be dismissed. He said the state would not be allowed to file a motion to dismiss, and instead ordered Colorado to respond formally to the lawsuit by the end of June.