Good Ads vs. Bad Ads: Is Pot Obscene?

As cannabis becomes big business, magazines and television stations have begun attempting to lure medicinal cannabis providers to pay for advertising space to promote their product. This, however, has been a source of some contention with the federal government since possession of cannabis remains a federal crime. Though President Obama initially said that he would refuse to get involved in the state law battle of cannabis legalization, the appearance of advertising materials promoting the use and sale of medicinal cannabis may have been too much for the Justice Department to ignore.

Would this ad be allowed for cannabis?
Would this ad be allowed for cannabis?

Advertising material, which is considered commercial speech, is protected by the First Amendment but it does not receive the same amount of protection as other forms of speech, such as political speech. The Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, set out a four-part test to determine whether government regulation of advertising speech is valid: (1) Does the advertisement involve lawful activity? (2) Does the government have a substantial interest? (3) Does the regulation of the advertisement advance the substantial government interest? (4) Is the regulation the least restrictive means of advancing the substantial government interest?

According to one recent report, the Justice Department is now threatening to go after broadcasters and publishers that run cannabis advertisements. Should any of these broadcasters or publishers challenge the validity of that federal regulation, they would certainly argue that the test enunciated in Central Hudson has not been met. The publishers and broadcasters would argue that though the government may have a substantial interest in not allowing cannabis to be publicly advertised, the prohibition of all cannabis advertisements is not the least restrictive means of advancing that interest.

Because the federal government has seen fit to attempt to regulate the content of advertising speech, the amount of First Amendment protection is limited. There is a category of speech that exists that does not receive any First Amendment protection and thus can be completely regulated and even banned by the government; and that is obscenity. Obscenity, however, has been notoriously difficult for the Court to define. The most often heard definition is not a definition at all. It comes from Justice Stewart’s concurring opinion in Jacobellis v. Ohio, where he said he could not define obscenity but that “I know it when I see it.”

That served as the standard for what qualified as obscene speech until the Court decided Miller v. California, which set out the modern three part test for obscenity: (1) the prohibited material must describe or depict sex in a patently offensive manner; (2) the prohibited conduct must be specifically described in the law; and (3) the prohibited material must lack any literal, artistic, political, or scientific value. If the material to be prohibited meets these three requirements, it will be deemed “obscene” and subject to the maximum regulation of the government.

Some see cannabis advertising as treading right on the line between what is acceptable advertising and deserving of limited First Amendment protection and what is obscene. This distinction is vitally important to advertisers because it means the difference between being able to run an ad free of significant governmental interference and the government banning an ad altogether.

According to a New York Times report, one cannabis ad in a magazine enticed potential buyers with “naughty nurses” to take away the pain of their ailments. Though this would objectively fail the Miller test for obscenity because the conduct is not patently offensive, among other things, one can see how coupling cannabis advertising with sexual overtones could slowly but surely lead to more government regulation of cannabis advertising. This is yet another concern for the operators of cannabis retail sites, who should continue to be on the lookout because the federal government shows no sign of backing down.