THE BLOG
05/23/2014 01:17 pm ET | Updated Jul 23, 2014

'Regulate Marijuana Like Alcohol' Doesn't Mean Home Use Only

Vincent Carroll has written a piece for the Denver Post entitled, "Like it or not, CSO must abide by Amendment 64." In it, he scolds the Colorado Symphony Orchestra for its original plan to create a series of fundraising concerts where patrons could bring and consume their own marijuana on a secluded private patio at a private gallery.

The city of Denver is being cast as a killjoy and grouch by those who believe it should have let the Colorado Symphony Orchestra proceed with its original plan for a series of bring-your-own-pot concerts. Yet Denver had little choice but to veto the idea.

If "The High Note Series" had gone on as planned, it would have set a precedent, giving a green light to virtually any club, bar, concert or other gathering to allow open consumption of marijuana provided it sold tickets and confined pot use to an open-air area not visible from outside.

Can anyone seriously claim that's what Coloradans voted for in 2012?

Amendment 64 contains not one word hinting at a proliferation of commercial establishments open to the public where pot smoking would be encouraged. Nor did anyone active in the campaign ever suggest that was in the offing.

In response, I sent him an email explaining how freedom works:

Mr. Carroll,

I must strenuously disagree with your characterization of Amendment 64 as a bait-and-switch to Colorado voters who never approved marijuana smoking by adults in a private venue. While the Amendment made no explicit regulations for commercial establishments to provide a private location to consume marijuana, it also did not explicitly forbid such arrangements.

The purpose and intent of Amendment 64, however, is quite clear. "In the interest of... individual freedom... marijuana should be regulated in a manner similar to alcohol..." You cannot believe that alcohol may be consumed at sports venues, concerts, nightclubs, taverns, restaurants, and even in some non-commercial public venues while denying the same right to marijuana consumers.

I feel the voters who were bombarded with the message "treat marijuana like alcohol" didn't expect that meant marijuana consumers were to remain as hidden in the smoky garages and bedrooms at home as they were under the threat of police discovering them and arresting them. A constitutional amendment with the purpose of promoting individual freedom just cannot be interpreted to restrict freedom. The default when in doubt should be to presume freedom, not to presume restriction.

The Colorado Symphony Orchestra is probably bowing to Denver's demands not because they thought they would lose their case in court but because they don't want to spend the time and money fighting over it. Amendment 64's ban on "openly and publicly" using marijuana means both those conditions must exist. Smoking marijuana in a park, for instance, would be both visible to the general public (openly) and occuring in a public place (publicly). But smoking marijuana on a secluded patio (not openly) in a private venue (not publicly) can't possibly meet both those criteria.

Your interpretation that a person in a closed space might be seen smoking marijuana by another member of the public sharing that closed space, both of whom entered the closed space by purchasing a ticket with the explicit knowledge that marijuana smoking will occur, is invalid, as those two people are no longer "public", they are "patrons". Under your interpretation, a person paying a cover charge to engage in an orgy at a swinger's club is engaged in public indecency.

Moreover, the lack of Amendment 64 to provide commercial regulation of the pot lounges that sell and explicitly allow onsite consumption doesn't mean citizens don't have the freedom to consume a legal substance where it isn't explicitly prohibited. No bar in Colorado sells Oxycontin, nor do any bars explicitly state "you may consume Oxycontin here", but if I have a prescription for Oxycontin, I may consume it at the bar.

Thank you for taking the time to read a contrary opinion.