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Can Smoking Pot Be Considered a Form of Free Speech?

Activists lit up in protest of the War on Drugs—now they face severe charges.
 
 
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The latest front in the battle for rationalized drug laws is in downtown Philadelphia, where an activist facing a federal trial for marijuana possession asserts that he was smoking as a constitutionally protected method of political expression.

“This site is preserved for the First Amendment,” Chris Goldstein said, pointing toward the glass and brick building near 6 th and Market Street that contains the Liberty Bell. “That’s why we’re here.”

Goldstein and one other defendant will plead their case in a December trial that could result in six months in prison and $1,000 in fines.

“They’re taking the full weight of the law against us, ostensibly for that single joint,” said Goldstein, standing on the federal park space that lies in the shadow of Independence Hall. It’s here, at the site where the country’s founding fathers signed the U.S. Constitution that gives all Americans the right to free speech, where he’s been leading monthly “Smoke Down Prohibition” protests in his role as co-chair of the Philadelphia NORML chapter.

Activists have gathered to speak out against federal marijuana laws, and sometimes light up to make their point, since October 2012, but no one was cited until May. Since then, the local U.S. Attorney has started cracking down. More than 30 people have received tickets for $175, an several have been arrested . Goldstein was given a violation once in June and then again in August, and the feds are claiming it’s because he was cited twice that they are dragging him in for trial.

He sees it differently. “We’ve experienced very inconsistent enforcement,” Goldstein said. “They seek to prosecute us for making a stand for cannabis rights.”

The government does seem intent on making an example of smokers, despite President Obama’s assurance last year that the feds have “bigger fish to fry” than going after individuals. "People should know there are serious penalties for breaking the law on federal property," a spokesperson for the U.S. Attorney’s office told Philly.com. The Department of Justice released a memo just this August that included “preventing marijuana possession or use on federal property” as one of its bullet-pointed enforcement priorities.

Goldstein made no effort to conceal his drug use on federal property. Quite the opposite, in fact, as a photo of him smoking a joint appeared on the cover of a local newspaper in April. “We had our protests, behaved peacefully and were allowed to demonstrate,” he said, until, in his view, federal officials decided they wanted to shut him up.

Now he has a new, if unwelcome, platform to speak out, in federal court where he will argue that he was targeted for prosecution specifically because he was protesting drug laws, not just because he possessed a controlled substance. The other defendant is Don DeZarn, who ran an unsuccessful campaign for a New Jersey state Senate position in part on a platform of pot legalization.

The case could pave new legal ground for possession defense. Most First Amendment arguments against drug charges have centered around religious expression, not speech, and most have failed. While a New Mexico church did win the right to use ayahuasca as a sacrament, and peyote is legal for certain Native American rituals, religious marijuana arguments have been less successful even for traditional ceremonies. Just this January a federal court in Hawaii dismissed most of a lawsuit by the Oklevueha Native American Church claiming that police had violated their religious freedoms by seizing and destroying their marijuana. In the last six years, judges in California, Arizona, Alaska and Wisconsin have also rejected religious freedom arguments for possession or sale of pot.