Can Smoking Pot Be Considered a Form of Free Speech?
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 6th 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.
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.
Whether Goldstein can persuade the court to accept his argument remains to be seen, with supporters watching closely.
“Obviously not all public marijuana smoking is intended as an act of civil disobedience, but when part of an organized public protest, this should certainly be protected speech under the First Amendment,” said Keith Stroup, founder and legal counsel of the national NORML organization.
“The use of civil disobedience, as a tactic . . . has a long and proud history in this country, and can be terribly effective,” he said, citing the civil rights movement, gay rights advances and anti-war protests.
“This tactical option obviously requires some courageous, committed individuals willing to face arrest and jail time in order to make their point,” Stroup said. “Chris is the one looking at a possible jail term, and who has shown the courage of his convictions.”
While he would prefer to avoid spending six months in prison, Goldstein expressed no regret for putting himself in the line of fire in an attempt to move the needle on marijuana prohibition. “It’s up to us to do it,” he said. There are no plans to cease the monthly