The way Sen. David Farnsworth sees it, the decision by voters to legalize the sale of marijuana for medical uses does not mean they get to promote it.
So the Mesa Republican has introduced legislation which would ban billboard advertising for the drug in places they’re most likely to be seen. SB 1032 would make it illegal to advertise any drug illegal under federal law — and that includes marijuana — along state roads.
Whether that’s legal or not is up for debate.
Attorney Jeff Kaufman who has specialized in legal issues surrounding marijuana questioned whether the state could enact special rules for a product that is legal, at least under state law. He pointed out that judges in Arizona have said the state can’t use the federal prohibition as a reason to enact regulations that hamper the ability of marijuana dispensaries to operate.
“I think the bill, if enacted, would eventually be stricken down by the Court of Appeals as discriminating against a lawful form of medication,” Kaufman said.
Dan Barr, a lawyer with the First Amendment Coalition, sees it in a slightly different light.
He said that courts have given governments a certain amount of leeway in regulating “commercial speech.” For example, Barr noted, California has rules that prohibit advertising in a manner intended to encourage anyone under 21 from consuming the product and a strict ban on billboards within 1,000 feet of day-care centers and schools.
Kaufman and Barr agree that Farnsworth cannot legally do one of the things he wants: making it illegal to have signs touting the benefits of the drug or making claims about how legalization has worked out in other states.
That clearly is one of Farnsworth’s goals.
He specifically complained to Capitol Media Services about a billboard he saw which says that there has been no increase in teen use of the drug in Colorado since marijuana was legalized for recreational purposes. Farnsworth says that’s “totally false.”
“I personally have been offended in my own neighborhood when I see a billboard that’s promoting marijuana usage,” he said. Similar billboards have sprung up around the state with similar messages, like a claim that states that have legalized marijuana have seen a decline in opioid use.
The problem with that kind of ban, said Barr, is the state would be seeking to regulate not a product but an idea.
“If you’re advertising about a public issue regarding voting on legalizing it, that’s something else,” he said.
Farnsworth conceded Arizona could not ban billboards which urge people to vote specifically for a ballot proposition that would legalize marijuana for all purposes.
“Free speech and promoting what you believe in is an important part of our society,” he said. And Farnsworth said he will make sure that the final version of SB 1032 is worded in a way so as not to stifle legitimate political speech.
But Barr said the message does not even need to specifically urge people to vote yes for a specific numbered ballot measure to gain constitutional protection. He said even signs talking about how legalization affects crime or the number of people incarcerated are entitled to the same First Amendment protections.
“Those are all public policy issues,” Barr said. And he’s not sure that Farnsworth’s proposal can be crafted in a way to pass constitutional muster.
“As we know, the Arizona Legislature’s not famed for its narrowly drafted legislation,” he said.
As much as Farnsworth wants to keep billboards promoting marijuana out of the public eye, he acknowledged that SB 1032 as crafted has a huge loophole.
The measure puts the ban on advertising marijuana into a section of law that governs only what can be erected along interstate highways and other numbered state roads. None of that would preclude any sort of advertising of not just the political debate but the drug itself on signs along major local streets or even right downtown.
Farnsworth said that wasn’t his intent.
“We’re going to have to go back and recraft it,” he said. But Farnsworth said he’d be happy just to get the bill through in its current form.
“It’s still a step in the right direction,” he said.