Marijuana advertising lawsuit: State should treat pot more like alcohol, Westword attorney says

Earlier this week, Westword and High Times magazine filed a lawsuit against the State of Colorado in regard to regulations that restrict recreational marijuana advertising to publications that are deemed "adult" by a state-mandated formula. Attorney Steve Suskin, who represents Westword on behalf of the paper's parent company, Voice Media Group, says the complaint was filed because the state's current rules could violate the First Amendment. Meanwhile, the paper's publisher emphasizes that when it comes to such ads, Westword is very much open for business.
 
"We are 100 percent confident of the legality of where we are in terms of taking this business," says Scott Tobias, who is also the CEO of Voice Media Group, a company that owns publications in Los Angeles, New York and other major U.S. cities in addition to Denver. "From the very start of Amendment 64, we committed ourselves to being a reference point to the medical marijuana community, and now the retail marijuana community. We remain committed to strong partnerships and support of these businesses."

As for the lawsuit, it was assembled by attorney David Lane, who last year represented High Times in a successful challenge to a law that essentially treated marijuana magazines like porn. We've included the entire document below, along with a motion for a preliminary injunction and supporting brief. But in general, the complaint attacks Colorado rules stating that television and radio stations, print publications and more can only accept such ads if they can prove their audience is overwhelmingly adult.

Attorney David Lane.

Here's the language in regard to print businesses: "A Retail Marijuana Establishment shall not engage in Advertising in a print publication unless the Retail Marijuana Establishment has reliable evidence that no more than 30 percent of the publication's readership is reasonably expected to be under the age of 21." The suit argues that restrictions such as the 30 percent designation, which is also applied to other media outlets, "irrationally single out Retail Marijuana Establishments for more stringent advertising restrictions than those regulating the alcohol industry although the Colorado Constitution calls for the regulation of marijuana 'in a manner similar to alcohol.'"

The document also maintains that "defendants have not and cannot produce sufficient evidence to demonstrate that any of its heavy-handed restrictions at issue directly advance any arguably substantial government interest(s)."
As such, the suit contends that specified edicts in the Colorado Retail Marijuana Code "violate the First Amendment because they regulate lawful and non-misleading commercial speech concerning Retail Marijuana Establishments."

A High Times magazine cover.

According to Westword attorney Suskin, the decision to join the suit "is really more a matter of principle than it is a burning need to have a change in the law in order to continue serving the marijuana industry in our advertising function. "The law is set up on the broad concept, at least as it relates to marketing and advertising, that none of these messages reach children," he continues. "I suppose that's the state's altruistic goal, and frankly, the demographics for Westword probably meet the strict criteria in terms of the percentage of readers who are over the age of 21.

But we thought it was important that it be clear the regulations that have been promulgated by the state are in conflict with Westword's First Amendment rights in terms of free speech.
"That's really what the complaint and the motion for preliminary injunction are all about. It's important that we not create a precedent or go down a slippery slope, where commercial speech restrictions are enacted that violate Colorado citizens' First Amendment rights."
Since the regulations went into effect, "there haven't been any overt attempts by the State of Colorado to enforce these regulations on us, nor has the state done so anywhere else that we know of," Suskin says.

"But the laws exist, and we're engaging in the very activity that the law attempts to regulate. And the state enforces its law through a vast network of law enforcers. You've got municipal police departments, county sheriff's offices, district attorneys in districts all around the state.
"There are a lot of players in this thing, and politically, there continues to be disagreement about the wisdom of what the voters enacted with Amendment 64. So that creates the very uncertainty and unpredictability that Westword is attempting to protect itself from by this lawsuit."

In the past, Suskin points out that courts "have been very skeptical about states' attempts to regulate speech in cases that have to do with alcohol and tobacco -- and we believe those cases are applicable to this situation.... Even though the developments in Colorado and other places [in regard to marijuana] are fairly recent, we think the First Amendment to the U.S. Constitution will control in the same way it did in these other instances."
Beyond that, Suskin feels that "Amendment 64 was a clear decision by the voters of Colorado that marijuana should be regulated like alcohol.

That was the theme of the whole thing, and that's what people voted for. So Westword is urging the court to give life to the voters' position on these matters. And that should result in the court restricting the State of Colorado's ability to restrict commercial speech.
"The law should be as clear for us as it is for the industry out there -- marijuana retailers who want to communicate with people about their goods and services. We think the First Amendment protects us and the people who are in the marketplace. That's the important principal we want to have the court rule on."
Here's the complaint, followed by the motion for a preliminary injunction and supporting brief.

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