The Fifth Circuit Court of Appeals decided on November 22, 2024 an interesting First Amendment case involving the advertising of marijuana. Here’s the facts: The State of Mississippi passed in 2022 the “Mississippi Medical Cannabis Act,” which authorized the sale and use of marijuana for certain medicinal purposes. The Act also contained substantial “restrictions on the advertising, signage, and display of medical cannabis.” Billboard advertising, for example, is prohibited.
Clarence Cocroft, the owner of Tru Source Medical Cannabis, LLC, sued the State of Mississippi, through its Commissioner of the Department of Revenue, Chris Graham. In Cocroft vs Graham, the Plaintiff argued its First Amendment rights were violated by prohibiting most forms of advertising of this product legalized by the Act, medical marijuana. The State, in turn, argued the Federal Controlled Substances Act (“CSA”) prohibits activities involving marijuana, including for medical use, nationwide. Further, under the Supremacy Clause, the CSA is the law in Mississippi, regardless of what its State Legislature says. And, as such, the State faces no constitutional obstacle to restricting commercial speech relating to unlawful transactions, thereby subjecting the Plaintiff’s case to dismissal.
The trial court agreed and granted the State’s motion to dismiss. The appellate court affirmed the judgment of dismissal, explaining the case is analyzed and determined under the United States Supreme Court’s 1980 decision in Central Hudson vs Public Service Commission:
“At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that protection, it at least must concern lawful activity and not be misleading. Next we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. “
The appellate court didn’t need to go past the first question of whether the expression concerned a lawful activity. It didn’t, according to the court. As it observed, “this case boils down to whether medical-marijuana transactions are ‘lawful’ commercial activity in Mississippi. Supreme Court precedent teaches that the lawfulness of the underlying commercial activity is a ‘threshold matter’ in determining whether related commercial speech comes within the ambit of the First Amendment. Because unlawfulness is dispositive the most natural reading of Central Hudson’s first prong makes quick work of this case: Marijuana transactions are illegal in every state by virtue of federal law, so no commercial speech proposing such transactions ‘concern[s] lawful activity.’ Thus, the First Amendment poses no obstacle to a ban on such speech.”
The Plaintiff had argued, as you might imagine, that Mississippi legalized marijuana, at least for medical purposes, in the first place; so, it was a legal product and lawful activity after all. Not so. Instead, the court explained “here, the federal CSA prohibits marijuana (including medical marijuana) in every state. The Supreme Court confirmed that … the CSA is a valid exercise of Congress’s power under the Commerce Clause, and it held that the Supremacy Clause ‘unambiguously provides’ that the federal CSA governs even in states with more permissive marijuana laws. Marijuana is illegal in every United States jurisdiction, ‘any Thing in the Laws of any State to the Contrary notwithstanding’” under Article VI Clause 2 of the Constitution.
President Biden has signaled relaxation and even elimination of the regulation and inclusion of marijuana as a “controlled substance” under the CSA. President-elect Trump’s position on the issue is not so clear. But, the one thing that is certain is that, until the weed is legalized under federal law, the First Amendment protection for the outdoor advertising of it will remain limited.
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