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October 14, 2011

Feds now talking about prosecuting media running medical marijuana ads!?!

This new AP story, which is headlined "US attorney considering going after newspaper, other media running ads for pot dispensaries," highlights how the federal government's latest push in the "war on pot" is now going past serious federalism concerns and starting to implicate serious First Amendment issues.  Here are the basics:

The chief federal prosecutor in San Diego is contemplating expanding a federal crackdown on the medical marijuana industry by going after newspapers, radio stations and other outlets that run advertisements for California’s pot dispensaries, her office told The Associated Press on Thursday.

U.S. Attorney Laura Duffy made the comments initially to California Watch, a project of the nonprofit Center for Investigative Journalism. They come a week after she and three other U.S. attorneys in California vowed to close medical marijuana businesses they deem questionable and single out people who rent buildings or land to the industry.

“I’m not just seeing print advertising,” Duffy told California Watch. “I’m actually hearing radio and seeing TV advertising. It’s gone mainstream. Not only is it inappropriate — one has to wonder what kind of message we’re sending to our children — it’s against the law.”

Duffy wasn’t available Thursday to speak to the AP but her office confirmed the comments published by California Watch. The federal government will determine whether the media crackdown is necessary as the results of last week’s actions unfold, Duffy’s spokeswoman Debra Hartman said. She cited a federal law that prohibits people from placing ads that have the purpose of buying or selling a controlled substance.

“If I own a newspaper ... or I own a TV station, and I’m going to take in your money to place these ads, I’m the person who is placing these ads,” Duffy said, according to California Watch.  “I am willing to read (the law) expansively and if a court wants to more narrowly define it, that would be up to the court.”...

Duffy’s comments are creating a buzz in the media industry, California Newspaper Publishers Association executive director Tom Newton said. As it stands now, advertisers are responsible for the contents of their ads in newspapers, he said. “If they are false, misleading or fall below the line in other legal ways, advertisers are responsible,” he said. “Newspapers don’t have the staff or time to vet every claim in every ad that they run.”

Duffy, whose district encompasses San Diego and Imperial counties, and the U.S. attorneys in three other California districts sent written warnings last week to landlords leasing property to dozens of warehouses and agricultural parcels where marijuana is being grown and for retail spaces where it is sold, telling them to evict their tenants or face criminal charges or seizure of their assets.

The attorneys say the state’s law legalizing medical marijuana was intended to allow it to be supplied to seriously ill people on a nonprofit basis.  But the law has been abused by people who are just looking to get rich, they say.  The action comes only months after the Obama administration tightened its stance on the issue.

Media owners were waiting to see what happens before reacting publicly, Newton said. “I think everybody needs to take a breath here and really think about the implications of this issue and whether or not this is a reasonable effort and use of the limited resources of the U.S. attorney’s office,” Newton said.

Wow!  I have a very hard time not being a bit stunned by U.S. Attorney Laura Duffy's comments, which seem to have planned out and have elements of fascist and anti-capitalist instincts.  I hope not merely proponents of medical marijuana and states' rights will be troubled by this, but that everyone who believes in basic American constitutional principles will be at least a bit concerned by what USA Duffy is saying here.

First, rather than make a fair assessment of whether Congress authorized these kinds of prosecutions and/or whether the Constitution would permit them — an assessment she is duty-bound and has sworn to do — USA Duffy here proudly asserts that she will actively try to expand the federal criminal law to scare and potentially imprison those who in the private media who provide a conduit for local and state businesses to advertise their services.  And rather than understand that people "just looking to get rich" is at the heart of our capitalist free-market commitment to allowing private people to provide desired products to willing consumers, USA Duffy here proudly claims that she knows better than state officials in California who should not be allowed to be in the medical marijuana business and that federal prosecutors should be able to punish media outlets for not sharing her particular views of good versus bad businesses in the state.

Second, it is not as if there are no other serious crime threats in California to occupy the activities of the US Attorneys out there.  As everyone knows, just in the last few weeks, California has begun to implement its prison reduction plans by returning large numbers of state prisoners to their local communities.  Might it not make a bit more sense for the feds in California to invest time and energy helping state and local officials figure out how best to assess who now most threatens the community?  I doubt that ads in the newspaper and the radio are the most serious threat to kids in San Diego.  And, unless the US Attorney's office under USA Duffy has fully and permanently fixed all the problems of illegal immigration on California's southern border, I do not quite understand why they think some medical marijuana ads are more harmful to the community than illegal immigrants.

I could go on and on, but I trust I have made my views here clear that I think this federal prosecutorial threat to the local media risks sending a lot more bad messages to American children than a few pot dispensary ads.  That all said, I hope I have not already shouted down any readers who might be supporting of U.S. Attorney Laura Duffy's comments.  I genuinely wish to hear from readers who may view the threatened federal prosecution of local media running pot dispensaries advertisements as not only constitutionally sound, but also a good modern use of federal resources in Southern California.

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Posted by: Michael J.Z. Mannheimer | Oct 14, 2011 12:09:21 PM

When I was Counselor to the head of the DEA in the last Administration, this was not something we undertook or considered undertaking. It might have merits I'm not seeing, and I will leave it to the current Administration to explain, if it cares to, what they are.

Posted by: Bill Otis | Oct 14, 2011 1:13:08 PM

"elements of fascist and anti-capitalist instincts"

Not a big fan of this approach but that is a tad much.

Query: is it legal to place ads, including on federally regulated airwaves, for products that violate federal laws? Can I advertise where to get heroin and pirated videotapes in the NYT and on the local network affiliate, if they allow it? Is this not something the feds would regulate? As to safety issues, sure, if you think federal drug laws are stupid and all. If you don't, you might want to enforce them.

I'm not sure how "fascist" it is to try to stop the adverstising of illegal items. It is granted it is "anti-capitalistic" in a sense, though only to the degree stopping the sale and promotion on federal airwaves of illegal items would be. The other side repeatedly brings up the need and well intentions of those who sell pot. If they are just doing it to make money, well, fine, but that does temper their good will a tad. If they are making money AND serving the public, they aren't "just" making money.

Posted by: Joe | Oct 14, 2011 2:15:21 PM

personaly i think when a govt offical goes this far off the reservation so to speak right into TREASON they are a free target for anyone who wishs to rid the world of them for THEIR CRIMES!

Posted by: rodsmith | Oct 14, 2011 3:30:29 PM

I'm not sure if this is different in principle from craigslist coming under threat of prosecution in recent years for running ads for prostitution -- I will admit not following the details of how that played out but it certainly seemed that various state AG's offices were being heavy-handed and unsubtle and not getting *too* much libertarian public pushback for overreaching. On the other hand a lot of the sort of free "alternative" weekly newspapers that, to judge from casual perusal the last time I was in California, run very unsubtle ads for pot-smoking-facilitation services (basically, ads that telegraph that if you've got the specified amount of cash, they will diagnose you with some vague medical condition that gets you the medical-marijuana card, and you have an essentially zero percent chance of not having a qualifying condition) are in a segment of the print-media world that has also long run very thinly-disguised ads for prostitution services and has traditionally not been prosecuted for doing so.

I couldn't tell you whether there are de facto understandings (the details of which could vary by jurisdiction) about what sort of prostitution ad is too blatant and might get the paper in trouble versus what is thinly-veiled but nonetheless sufficiently veiled to be tolerated. Of course, since advertisers (both for prostitituion and dope-related services) give their own contact info in hopes of attracting customers but without actually getting busted, the real question may be what sort of ad is or is not sufficiently discreet to avoid excessive prosecution risk for the advertiser rather than the newspaper.

Posted by: JWB | Oct 14, 2011 5:40:40 PM

If a newspaper were so bold as to accept money from a hitman to advertise his/her services of murder for hire would anyone say that the newspaper had a First Amendment right to do so?

Medical marijuana may be a complete defense to a state criminal prosecution in California, but it is still a federal crime. Typical aiding and abetting concepts require that the defendant (newspaper, radio station, TV station) be aware of the perpetrator's intent to commit the crime (sell marijuana) and by act or advice, counsel, aid, abet, facilitate, promote, or encourage the perpetrator's commission of the crime with the intent to do so.

Surely, accepting money to deliver the offer for sale of an illegal drug knowing full well that such advertising will assist the seller in finding customers fits such concepts without an "expansive" reading of the law. They certainly know what is being sold, they are in fact assisting in the sale by helping connect buyers and sellers and the idea that they do not intend to connect buyers and seller is simply absurd. No one actually pays for advertising without believing the newspaper's representation that it actually works. Whether such a prosecution is a good idea, that is a different question. But do the feds have a legal leg to stand on, yes they do.

One really should ask the quesion, what are mainstream newspapers, radio and tv stations doing advertising the sale of a substance that is entirely a federal crime to possess and/or sell. Maybe the Government should simply seize the ad money as evidence of the seller's crime of offering to sell a controlled substance and take the incentive out it entirely for them.

Another example. What if California did not criminalize forging a Resident Alien Card (aka Green Card) because immigration is a federal matter.* The feds do, however. Can my local newspaper without fear of prosecution, accept advertising from those who sell fake green cards knowing full well that they are facilitating a crime (and making money off of it)?

*If you do not like this example try something else, forgery of a US State Department Official Badge, anything with exclusive federal control.

Posted by: David | Oct 14, 2011 9:16:31 PM


Link offered without comment.

I have a great deal of patience with the lawyer, which I love.

When ready to go hunting the tyrannical prosecutor and judge, we would start with total e-discovery as a standard of due care for all defense attorneys. All the content of their computers would be published to the web. Any child porn on any federal computer would be reported to the FBI. Let these lawyers explain to the FBI how it is part of their work. I know no defense lawyer will ever do that because the defense owes its job to the prosecutor, not to the client. Next, every utterance would be subjected to Professional responsibility analysis, and they would remain in a perpetual state of ethics investigation. Send one a month, to each oversight body.

Next, they would go on a boycott list. No service or product provider would serve these public enemies. Killing them is not a good idea, since their competitors would love it, and replace them immediately. The idea is to deter by tormenting them, as they torment the American people.

Posted by: Supremacy Claus | Oct 14, 2011 10:02:01 PM

I do not know why anyone is alarmed by the flipant attitude of the USAO. Remember the Democrats are in power and they have history of stretching let alone kicking out the envelope of federal criminal liability.

Posted by: k | Oct 14, 2011 10:08:17 PM

There's a bit of a difference between advertising for a hit man or even heroin. California law allows dispensaries to sell marijuana, provided they follow state regulations. Unfortunately, because federal law allows the federal government to enforce marijuana laws, some misguided DOJ representatives have decided that they are compelled to do it, notwithstanding the wishes of the majority of voters in California.

Sadly, the natural beneficiaries of this policy will be the very violent drug gangs that the government wants us to fear.

Posted by: C.E. | Oct 15, 2011 12:16:12 AM

C.E. --

It has been settled for a very long time that federal law trumps inconsistent state law, and DOJ is an instument of federal law.

If you think the federal prohibition on marijuana to be unwise, take it up with Congress.

And if you think the drug cartels will go out of business if we legalize pot, you're fooling yourself. They'll switch to other, more menacing drugs and/or to human trafficking, which they're already heavily into if the truth be known.

Posted by: Bill Otis | Oct 15, 2011 10:19:09 AM

Bill: What do you think about the idea that the biggest rent seekers of all are the drug cartels, bigger than the lawyer profession that needs prohibition for prosecution and defense jobs. The prohibition of drugs is a gigantic US Government subsidy to their drug businesses. These drugs are all generic or natural product not subject o patents. Super cheap if not prohibited.

The Cartels own many legitimate US businesses and can fund limitless lobbying to protect their economic interests in prohibition. That makes the members of Congress traitors to the nation. CE grasped that point. I hope you can.

Posted by: Supremacy Claus | Oct 15, 2011 11:11:00 AM

SC --

The thing to do with drug cartels is defeat them. The Administration is finding this difficult, and understandably so, since it supplies them with assault weapons and then gives a song-and-dance about it to Congress.

Posted by: Bill Otis | Oct 15, 2011 1:48:40 PM

I oppose the current setup. I would support the end of prohibition of relatively harmless, mildly addictive marijuana, or the prohibition of alcohol and cigarettes. They kill 500,000 middle aged, responsible Americans, generate 25% of the health cost, are found over the legal limit in half the murder victims, half the murderers, half the suicides, half the car crashes, and take who knows what toll on our economy. Prohibition of alcohol and cigarettes would require Draconian measures against both users and suppliers. For example, no $1000's for counseling, but $10 for the lash for the addict, and summary executions of suppliers, under mandatory guidelines. Say you have to execute 10,000 people a year or even 100,000 a year. You would still be way ahead by 400,000 saved. Because there is no public support for even 1920's style prohibition (soft), I choose to support legalization of marijuana to keep the law consistent and not looking foolish or hypocritical.

If you are going to support making war on the marijuana suppliers, to stay consistent and logical, you must support making war on cigarette and alcohol suppliers.

I have proposed an alternative on the demand side, the Adult Pleasure License. People are left to use and do whatever they please, until they start causing damage. As points accumulate from damage, they lose their Adult Pleasure license. Then draconian measures could be taken again unlawful suppliers. Meanwhile the majority of adults who cause no damage are left alone to do and use as they please in peace.

Posted by: Supremacy Claus | Oct 15, 2011 6:08:06 PM


"It has been settled for a very long time that federal law trumps inconsistent state law, and DOJ is an instument of federal law.

If you think the federal prohibition on marijuana to be unwise, take it up with Congress."

Well bill if that is true. Maybe the USDOJ should show a pair of balls and go for the real criminals.


have doj's swat teams arrest the state governor who signed the law. The state senators who VOTED for the law! and ESPECIALY the ones WHO WROTE IT! in the first place.

seems kind of friggin retarded to go after the state's citizens who are just doing what THEIR STATE GOVT! says they can do!

Posted by: rodsmith | Oct 15, 2011 8:21:10 PM

Bill Otis misunderstands my comment. There is nothing illegal about what the DOJ is doing. But the DOJ is not compelled to do what it is doing. It could choose to exercise its discretion to allow California to continue with its experiment.

And the canard that drug gangs will continue to act like criminals is not a valid argument in favor of prohibition. How does it make sense to keep marijuana illegal just to keep them from committing other crimes? Why not make something else illegal so they can do that, too?

Posted by: C.E. | Oct 16, 2011 1:26:14 AM


"But the DOJ is not compelled to do what it is doing. It could choose to exercise its discretion to allow California to continue with its experiment."

It's one thing to exercise discretion not to bring one case here or there. It's quite another to decide to take a pass on an entire segment of federal law in the nation's largest state. That would amount to executive branch nullification of the law, which is the opposite of that the Constitution commands the executive branch to do.

If Congress wishes to amend the CSA to give a federal exemption where a state legalizes marijuana, it could do that. But it hasn't, and until in does, your proposal amounts to executive branch nullification.

"How does it make sense to keep marijuana illegal just to keep them from committing other crimes?"

Prohibition makes sense because marijuana is a harmful substance. And I'm not interested in the weary argument that Congress allows other harmful substances. Just as the executive branch has discretion to choose among particular crimes to prosecute, Congress has discretion to choose among particular substances to ban or not ban (or quasi-ban, which is getting to be the case with tobacco).

Posted by: Bill Otis | Oct 16, 2011 5:32:43 PM

The people of California have already spoken and many other states are in the process also. The feds have a severe case of 'Reefer Madness' because their track history in stopping the flow from external sources has done nothing but cost taxpayers millions of dollars and formented untold levels of violent crime by those controlling the illegal flow for the past 40 years. But by far the biggest reason and the biggest losers are our own citizens. It's immensely easier and more cost effective to locate, persecute and prosecute U.S. citizens within our own borders.

Posted by: comment | Oct 17, 2011 5:41:22 PM

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