The battlefield for cannabis legalization has been soiled and worn by warring factions committed to their respective worldviews. While liberals and libertarians extol cannabis’s benefits and fundamental right-to-be-consumed, conservatives (at least traditional conservatives) push back with morally inspired rhetoric warning of the herb’s corrosive material and spiritual effects.
Ostensibly, this rift between conservatives and libertarians on legalizing cannabis is difficult to reconcile. Fundamental to both of these groups is the push for small government and at least a laissez-faire styled approach to various government intrusions and regulations in matters of economics. It would seem only natural for old-school conservatives to fight for the right to use cannabis, even if they personally do not choose (at least publicly) to partake. Ultimately, bridging this philosophical gulf has been challenging because the conservative moral imperative has seemingly trumped its competing interest in preserving small government. How then should cannabis activists stir traditional conservatives to reconsider their position?
In order to supersede one imperative, one must be creative and invoke a higher-order directive, cherished by the most hardcore of conservatives: The first amendment. Admittedly, the case for cannabis legalization on free speech grounds is exotic and would likely elicit skepticism from Supreme Court justices. But it’s worth a shot.
A fundamental principal undergirding first amendment law is that the Government may not regulate speech based on its content (and if it can regulate certain subject matter, it may not do so in such a way as to favor a particular point of view). In the event that a law is drafted that either impermissibly regulates content or favors a certain viewpoint, the court will apply what is known as a strict scrutiny standard of review and examine whether the statute is both necessary and narrowly tailored to meet a compelling government interest. If the law fails either of these two prongs, it will be struck down.
Of course, not all speech falls under the umbrella of First Amendment protection (fighting words, child pornography, obscenity, libel) and in the event that a statute targets one of these unprotected categories, the first amendment analysis comes to a halt and may not be invoked as a defense.
At this point, you may be experiencing some confusion and wondering what cannabis use has to do with first amendment, freedom of speech rights?! This is precisely the argument that the government would likely make – criminalization of cannabis regulates conduct, not speech, and thus the first amendment is blatantly irrelevant.
A closer inspection of both cultural and personal commitments to cannabis, however, underscores just how unimaginative this proclamation really is. Of course, the use of the herb is “conduct” but that does not preclude it from also conveying a protected message under a first amendment schema. Indeed, a classic illustration of this point is the right to burn the American flag – the act of burning is “conduct” (however offensive and unpalatable) but behind the conduct is a deeply profound expression of thought and is protected by the first amendment.
Beyond the medicinal and psychological effects of cannabis, the herb has historically carried deep symbolism and embodies a certain counter-culture worldview that citizens should have the right to freely express. The anchoring of personal identity and cultural discourse to the use of cannabis renders it a near perfect candidate for the sort of subject matter protected by the first amendment.
Once we accept the premise that using cannabis is in fact an expression of speech, we return to the first amendment analysis previously described and examine if the government can regulate and ban it.
Is cannabis one of the categories of speech that falls beyond the realm of first amendment protection (fighting words, child pornography, obscenity, libel)? No. Does the government have a compelling interest in barring it under the strict scrutiny standard of review? Probably not. Coupling the medicinal benefits it confers to its patients with the amount of tax dollars its legalization would bring both State and Federal governments, it would be difficult to argue that such a compelling case really exists.
However, even if this hypothetical Supreme Court would find that the government has a compelling interest in banning cannabis (for public safety issues), the blanket Federal ban on cannabis is not narrowly tailored to achieve its compelling interest. Indeed, minimally, federal law should recognize medicinal cannabis as a legitimate remedial outlet for sick patients. As it currently stands, its inclusion as a schedule 1 drug under the control substance act does not recognize this reality. The government’s regulation of cannabis (as it is understood here to be a suppression of speech) cannot pass the strict scrutiny standard of review and will be ruled unconstitutional.
Ultimately, and perhaps cynically, cannabis will only gain true legal recognition once its use is reframed as a social liberty instead of a casual vice.
Howard Cohn is the senior partner at THC Legal Group, a law practice specializing in intellectual property protection for the cannabis industry. As a patent attorney, Howard is chiefly involved in assisting our clients in the procurement of patents for their most prized inventions.
Abe Cohn is the COO of THC Legal Group. Abe focuses much of his energies on navigating through the complex landscape of the cannabis industry. For more information, please visit their website at