How legal marijuana keeps running into censorship issues


This Article was Published on The Cannabist

As legalized marijuana expands, so does media coverage of all things related to cannabis.

It’s all over websites and blogs, and also newspapers, magazines and podcasts — even ad agencies like Cannabrand and 420Media have formed to specialize in marketing for the booming bud business.

But the sprawling marijuana media landscape comes without a blueprint, leaving the ways in which publications and cannabis companies are allowed to connect with their audience tied to ever-changing state laws and policies of social-media platforms.

There has been growing concern in recent cases about whether constitutional rights are being violated for media and marketing centered around a drug that’s federally illegal.

In Maine, a marijuana legalization initiative that will appear on the November ballot includes a provision that would require retailers to treat cannabis magazines such as High Times like hardcore porn — restricted from the underage public behind the counter. (In case you wondered, such publications are currently available on the sales floor of Maine retailers, including Barnes & Noble in Augusta and Longfellow Books in Portland.)

Oddly, the provision is backed by a joint venture of cannabis advocacy groups Legalize Maine and the national Marijuana Policy Project, the latter of which publicly opposed a similar Colorado provision in 2013.

After voters approved Colorado’s marijuana-legalizing Amendment 64 in 2012, lawmakers passed a series of regulatory bills in 2013, including a first-of-its-kind law restricting visibility of weed-themed magazines. Three cannabis publications — including High Times — and local bookstores filed lawsuits, arguing that shielding marijuana publications violated their rights to freedom of speech.

State marijuana regulators issued an emergency rule concluding the law was unconstitutional and a federal judge subsequently halted the provision. At the time, Mason Tvert, the Colorado-based director of communications for MPP, celebrated the regulators’ decision as a victory for the independence of pot press and said in a statement:

“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. 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.”

Last October, MPP joined forces with Legalize Maine to form the coalition Regulate Marijuana like Alcohol, to ensure their competing initiatives did not get in the way of the overall goal of legalizing cannabis in Maine for the upcoming election.

David Boyer, the campaign manager for Regulate Marijuana like Alcohol and Maine political director for MPP, explained that although beer magazines can be displayed anywhere, the Maine campaign wishes to treat marijuana magazines and online content similar to beer company websites — requiring proof of age 21 or older to view.

“You’re allowed to advertise beer on TV, but there’s also regulations that seem to make sense, like not advertising towards children, which we support,” Boyer said in an interview. “Overall, we expect marijuana to be treated like alcohol. … Same thing as when you go to, (the site) asks if you’re 21 or not to enter. Even though you’re not drinking a beer, they’re still asking if you’re of age to view their content.”

Boyer said the campaign’s magazine restriction was part of Legalize Maine’s original initiative, which he said seeks to “respect the balance between a First Amendment right and giving the power to the community.”

First Amendment rights aren’t protecting marijuana advertising from being restricted in other parts of the country. Legislation recently passed in Colorado that prohibits medical marijuana from being advertised if there’s a likelihood the marketing would be seen by those under age 21.

A similar restriction is already in place for advertising recreational weed. Opponents of the new rules, including the Colorado Press Association, argued that there’s no evidence that pot advertising has ever been promoted directly to children.

Facebook’s advertising policy bans promotion of selling drugs, and New Jersey medical marijuana dispensary pages weren’t spared even though they have been legally allowed to operate in the state since 2011. (Jeff Chiu, Associated Press file)

Social media is another avenue where cannabis businesses have run into roadblocks.

There are numerous stories about marijuana-related Facebook pages and Instagram accounts that have been abruptly suspended in the legal era. Three of the five dispensaries in New Jersey had their Facebook pages temporarily shut down earlier this year on grounds they violated the social media giant’s standards against the promotion of selling drugs. Peter Rosenfeld, a board member of the Coalition for Medical Marijuana — New Jersey, told The Associated Press:

“It’s doing a real disservice to the patients of New Jersey. They’re treating it like they’re selling marijuana illegally when it’s a fully sanctioned nonprofit that’s controlled and regulated by the state of New Jersey.”

Though full access to cannabis media is currently susceptible to state laws, Boyer said that as with any legislation, the public can fight to change laws.

“If members of the community don’t like a portion of the law, then they can object to it, and that part can be taken out if it’s ruled,” he said, adding that marijuana legalization laws are bound to differ state by state, similar to the repeal of alcohol prohibition.

Boyer also is taking a wide view on Maine’s legalization effort: “If a state has changed its marijuana policy — whether it’s medical or adult use — then the federal government needs to respect that,” he said. “All of these 2016 initiative campaigns are really going to be helpful to turning the tide and forcing the rest of the country to adopt more sensible marijuana laws.”

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