Marijuana And Social Media: The #PotPolice

All of us (even those who oppose marijuana legalization) lose out when social media sites quash legitimate speech by unfairly and undeservedly pulling the plug on legitimate content. #SorryNotSorry.

If you follow our Canna Law Blog on Facebook, you probably know about our ongoing saga with the social media giant over its having banned our promoting our page or any of our posts. Why does Facebook block us from promoting content from the Canna Law Blog? According to Facebook Advertising Guidelines, and from what we have been told by Facebook via form emails, one “may not promote or facilitate the sale or consumption of illegal or recreational drugs, tobacco products, or drug or tobacco paraphernalia.”

But neither Canna Law Blog nor our Facebook page have ever promoted or facilitated the sale or consumption of anything, including drugs or tobacco. In fact, we studiously delete and ban anyone who tries to use our Facebook page for selling anything, including marijuana. Our goal is to educate our readers and stimulate discussions about marijuana, marijuana laws, marijuana business, and marijuana legalization.  Facebook’s blanket anti-drug policy impacts our ability to exercise our political speech rights and that frustrates us (and our readers) on a daily basis.

But what about other forms of social media? Is the rest of the Internet equally puritanical and unyielding when it comes to talking about marijuana? Unfortunately, the answer appears to be yes.

In 2013, Instagram banned #weed from its site and it continues to shut down accounts that show cannabis images, whether for medicinal or recreational use, even in those states with legal marijuana. Every day, marijuana political speech is curtailed by social media’s aggressive anti-cannabis speech restrictions.

The difference between political and commercial speech is typically pretty stark. Our Constitution’s First Amendment provides the most protection to political speech. Advocacy for marijuana legalization or commentary on marijuana social issues, for example, clearly falls into the realm of political speech. With commercial speech, on the other hand, the government can more easily restrict a product or service for sale and its advertisements.

In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the U.S. Supreme Court set out a four-part test to determine whether government regulation of advertising speech is valid: (1) Does the advertisement involve lawful activity?, (2) Does the government have a substantial interest?, (3) Does the regulation of the advertisement advance the substantial government interest?, and (4) Is the regulation the least restrictive means of advancing the substantial government interest?

Of course, since both Facebook and Instagram are private, non-governmental entities, our First Amendment does not bind them. But with the power wielded by social media, it is reaching a point where places like Facebook are essentially replacing the town square.

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Since marijuana is still a federally illegal controlled substance, governments can more easily prohibit advertising for its commercial cultivation, manufacture, distribution, and even possession. In fact, at one point in 2011, the Feds threatened to crack down on medical marijuana advertisers in states where it is legal. Even Colorado (post-legalization) has sought to restrict certain marijuana ads and publications, including High Times Magazine.

Due to current federal marijuana laws, we understand prohibiting advertisements for selling marijuana. However remote and unlikely, Facebook does not want to face charges from the Department of Justice that it aided and abetted in the sale of a federally illegal drug. However, where individuals are merely advocating for marijuana legalization, or for ending the war on drugs, or simply explaining why they enjoy marijuana, or what it takes to operate a marijuana business legally in various states, they should not be subject to bans and restrictions from social media sites that are either unable or unwilling to discern the difference between talking about something and trying to sell it.

All of us (even those who oppose marijuana legalization) lose out when social media sites quash legitimate speech by unfairly and undeservedly pulling the plug on legitimate content. #SorryNotSorry.

P.S. If you’re interested in starting a marijuana law practice — or if you’d like to learn about the steps it will take to open a dispensary legally in your state — please attend Above the Law’s Marijuana Law event next week in Denver, Colorado, where I’ll be a panelist. I look forward to seeing you there and helping you learn the ins and outs of this complicated and rewarding practice area.

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Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.