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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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Goldstein is taking a different tack in asserting his right to free speech, but legal scholars say that he has a tough standard to meet. “First Amendment protection kicks in when there's some form of expression, a sharing of ideas,” noted Ken Paulson, president of the First Amendment Center. “If you disagree with a law, simply breaking it wouldn't constitute free speech.”

Timothy Zick, a professor at the William and Mary Law School, agreed.

“So long as the law does not target speech based on its content, courts have granted officials pretty wide latitude to regulate the underlying conduct,” he said.

“The government didn’t pass the drug laws to regulate expression, and those laws don’t prevent protesters and dissidents from expressing dissatisfaction in many other ways,” Zick continued. “Smoking near the Liberty Bell might well express dissatisfaction with current drug laws, but it’s likely the government can snuff out this particular form of protest without running afoul of the First Amendment.”

Two prior, non-marijuana-related, cases are instructive to the legal theory. Both involve people setting items on fire. The U.S. Supreme Court in United States v. O’Brien ruled in 1968 that a man could be convicted of burning his draft card even if it was a form of political expression, because the law against destroying cards was related to their function and not intended to quash the speech of a person who wished to protest the Vietnam War.

In a later instance, the court ruled that laws against burning the American flag were in fact violations of the First Amendment, because they specifically targeted the message conveyed by torching the symbol of the United States. If the laws were merely against arson or public burning in general, the court noted, the flag burners could indeed be prosecuted.

“If you can persuade the court that you burnt what you burnt for the purpose of making a point, in this case protesting in favor of legalization and against laws that make marijuana use and possession a crime, that's what you have to show,” said Alan Howard, a professor at the St. Louis University School of Law. “The good news for the individual is that he probably would be able to get a court to find his smoking marijuana to be symbolic speech.”

“The bad news is that he probably won't succeed in getting the court to find that his expressive activity is an excuse for violating anti-drug laws,” Howard said. “The problem is that because they have a non-censorial use for punishing his use of marijuana, then the mere fact that they agree or concede that he did it to make a point as a protest won't suffice to immunize him from criminal liability.”

The key lies in Goldstein’s argument that he is facing harsher penalties than others for the same crime.

“If they could show that the state doesn't really care about enforcing the drug law but they decided to enforce it against him he could argue that what explains the prosecution wasn't that he was using the drug but that he was using the drug to say something they didn't like,” Howard said.

Other recent non-drug-related First Amendment protest defenses have proven successful in some circumstances. Last year a Portland man stripped down to his skin in lieu of walking through an airport scanner, telling TSA agents “I believe I am within my rights to be naked as a form of protest.” He was right—a judge acquitted him of indecent exposure, a city ordinance against visible genitals notwithstanding.

And in March of this year a jury acquitted a dozen Occupy Philadelphia protesters charged with conspiracy and defiant trespass for a 2011 protest against Wells Fargo bank after the defendants claimed a First Amendment free speech right to protest the bank’s racist predatory lending policies.