DENVER
06/06/2013 12:47 pm ET Updated Jun 06, 2013

Marijuana Magazines Treated As Porn Law Declared Unconstitutional By Colorado AG John Suthers

AP

Colorado Attorney General John Suthers has declared a new Colorado marijuana law that required pot magazines to be treated like pornography and kept behind a counter at shops to be unconstitutional and says the state will not defend it in court.

In an emergency judgement issued Wednesday, state Marijuana Enforcement Division regulators concluded that the law is unconstitutional.

The state AG signed off on the regulators' conclusion, The Denver Post's John Ingold reported.

"No magazine whose primary focus is marijuana or marijuana businesses is required to be sold only in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present, because such a requirement would violate the United States Constitution, the Colorado Constitution, and section 24-4-103(4)(a.5)(IV), C.R.S," a statement from the Colorado AG's office issued Wednesday reads, Westword reported.

"We applaud the Attorney General's decision to declare as unconstitutional this absurd rule that marijuana-related publications be treated like pornographic material," Mason Tvert, director of communications for the Marijuana Policy Project and key backer of Colorado's Yes on 64 campaign said. "The idea that stores can prominently display magazines touting the joys of drinking wine and smoking cigars, yet banish those that discuss a far safer substance to behind the counter, is absolutely absurd. The fact that legislators passed this rule despite being informed it is a gross violation of the U.S. Constitution demonstrates the bigotry that still exists with regard to marijuana. It is time for our elected leaders to get over their reefer madness and recognize that a majority of Coloradans – and a majority of Americans – think marijuana should be legal for adults."

David Lane, the attorney who is representing the marijuana publications in the suit, told Westword that the federal judge in the case had already set the hearing for today before the ruling that the law was unconstitutional was made.

"Judge Matsch set the hearing before this ruling came down," Lane said, "and we may still go through a status conference. Judge Matsch may want to know what mechanisms exist in the state system to prevent somebody down the road from changing their minds on this and implementing the legislation. I'd like to know the same thing."

On Wednesday, the Associated Press reported that the American Civil Liberties Union filed this separate lawsuit on behalf of booksellers, on Tuesday. The book stores represented in the federal lawsuit include The Tattered Cover and other book shops and newsstands in Denver and across the state, CBS4 reports.

The booksellers lawsuit came a week after three marijuana publications -- The Daily Doobie, The Hemp Connoisseur and High Times Magazine -- filed suit to block a provision of Colorado's new marijuana legalization laws which mandated that marijuana publications be sold only behind a counter in public retail stores "where persons under twenty-one years of age are present."

Gov. John Hickenlooper signed several landmark marijuana-related measures into law last week establishing Colorado as the world's first legal, taxed and regulated recreational marijuana market for adults. Those measures also came with several provisions designed to limit the exposure of children to marijuana advertising after some parents complained that the magazines were visible to children in stores.

Lane argued that the provision specifically targets the publications' right to free speech and clashes with the primary idea behind Amendment 64 to "regulate marijuana like alcohol."

“Amendment 64 was passed by Colorado voters who intended to ‘regulate marijuana like alcohol’... [but publications] ‘whose primary focus is alcohol or alcohol businesses’ are not regulated or penalized the same way as Plaintiffs’ marijuana-focused publications.”

In an editorial by The Daily Doobie, one of the marijuana publications involved in the suit, this double standard was noted:

The purpose of Amendment 64 was to regulate marijuana like alcohol. Images of other legal drugs alcohol, tobacco, pharmaceuticals—abound in the public sphere, as do magazines that write about and depict their use. Relegating High Times (and the Daily Doobie) to the back shelf, therefore, violates the spirit of 64 when Cigar Aficionado and Wine Spectator are perfectly visible at Barnes & Noble.

The magazine editorial questions the logic of how a marijuana publication like High Times Magazine can be purchased on a shelf in the state of Mississippi -- where recreational-marijuana is illegal -- but must be sold only behind the counter in the state of Colorado where it is legal.

Colorado is the first state to pass a law requiring pot magazines to be placed behind the counter in stores that grant entry to shoppers under the age of 21.

When the measure was being considered, a lawyer for High Times Magazine told The Associated Press that the magazine restriction "patently unconstitutional" and said there's no legal precedent for treating pictures of a drug as obscene.

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