Professor Stewart Jay
  • Professor Stewart Jay
The ACLU of Washington may think a proposed ban on medical pot advertisements is in line with the First Amendment, but University of Washington law professor and Constitutional law expert Stewart Jay tells me it's hard to imagine the ban withstanding a court challenge.

Yes, the state already bans certain types of pharmaceutical advertising (and even restrains its own speech by prohibiting state liquor stores from advertising). But the language of Sen. Jeanne Kohl-Welles' attempted ban on medical pot advertising is something else, Jay said.

In an e-mail this afternoon, he told me:

The ban on “artistic depictions of cannabis” is especially alarming, even on its face.

[An artistic depiction of cannabis] is the example given by the statute of an ad that inherently “promotes or tends to promote the use or abuse of cannabis” [and would therefore be prohibited].

If you applied the same rule in the context of ads for tobacco, alcohol, or pharmaceuticals, I don’t think it would be upheld....

Imagine a ban on an “artistic depiction of alcohol,” as applied to just about any beer ad. I can’t imagine a court upholding it. I’m not saying that there are absolute rules here, only that regulations of the content of ads for lawful products are subject to significant First Amendment scrutiny.

The state senate passed this problematic language last night, and no doubt the state house will be looking at it closely as it takes its turn considering Sen. Kohl-Welles's bill to clarify Washington's medical marijuana laws.

As the house does that, Professor Jay has a suggestion—and a hope:

Rather than enacting vague rules like this one, the legislature should empower an agency to develop rules for marijuana ads... I hope that the effort to legalize marijuana is not derailed over concerns for its advertising.