Our View: Defending the right to free speech
March 13, 2011
Steamboat Springs — The Steamboat Springs Planning Commission's interest in restricting the rights of medical marijuana centers to advertise their businesses and products in print media would clearly represent a violation of the Colorado state constitution as well as the First Amendment. We hope the Steamboat Springs City Council is wise enough to dismiss such a ridiculous attempt to stifle free speech.
Full transparency is in order: The Steamboat Pilot & Today sells print advertising space to the five medical marijuana centers that operate in Routt County. The total revenue from that advertising equals one-third of 1 percent of all print advertising revenue for the Pilot & Today.
This isn't about the potential for lost revenue for the newspaper; it's about upholding the First Amendment. And to that end, we were shocked at the comments of some Planning Commission members Thursday.
During a meeting to discuss proposed changes to the city's regulations for medical marijuana centers, several commissioners expressed concerns about the content of some medical marijuana print advertisements, specifically the impact the advertisements could have on children.
"I just don't like the impression that the print advertising is giving the youth in this community on marijuana in general," said Planning Commissioner Cedar Beauregard. He said ads "are crossing the line between medication and recreation."
Later in the meeting, Beauregard said he'd "personally feel comfortable banning it altogether in print."
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Commission Chairman Jason Lacy said he'd like to see some limitations on print advertising, perhaps limiting the content of the ads to just the medical marijuana center's name, location and hours of operation. Lacy seemed to be OK with medical marijuana radio ads.
"No one wants to recommend anything that would be in violation of the First Amendment," Lacy said.
Of course, that's precisely what he recommended.
City government does not have the legal authority to regulate the content of commercial speech. Put simply, government can't seek to control the message of commercial speech so long as the speech is for a legal activity or product. Lest our Planning Commission forget, Colorado voters made medical marijuana legal in 2000. Here in Routt County, 65 percent of voters supported Amendment 20.
There is, however, an avenue for government to restrict commercial speech not related to an illegal activity, and that's if the government can narrowly tailor the regulation of such speech so that it directly advances an important government interest. The federal government has been successful in employing such regulations to tobacco advertising, and that's because there's overwhelming evidence of the harm tobacco use causes to health. We doubt the city of Steamboat Springs has overwhelming evidence that demonstrates the important government interest in regulating the commercial speech of medical marijuana centers. And even if it did, the city would have to apply the regulation to all forms of commercial speech — print and broadcast media, for example — not just one of them.
Also at Thursday's meeting, city staff attorney Dan Foote suggested that because medical marijuana remains illegal under federal law, the city may have standing to regulate print advertisements. He's wrong.
The city of Steamboat Springs is a subdivision of the state of Colorado, and in Colorado, medical marijuana is legal. The story might be different if Congress were enacting legislation about marijuana advertising. It's not. Moreover, Colorado's constitution offers broader free speech protections than the federal constitution does.
If some members of the Planning Commission are concerned about the affect medical marijuana centers and their advertising might be having on their children, then they should spend their energy lobbying the Legislature and the people of Colorado to overturn Amendment 20. Violating the First Amendment rights of legal businesses to advertise their products certainly invites litigation, but it won't make medical marijuana or its affects on the community go away.