Attorney threatens First Amendment lawsuit over marijuana magazine rule in regulatory bill

DENVER - A Denver attorney has threatened a lawsuit if the governor signs the marijuana regulation bill that includes the requirement of keeping magazines about the drug behind a store counter.

Recently passed by the state legislature, House Bill 1317 also contains several other regulations pertaining to the sale of marijuana and the licensing of related businesses. Gov. John Hickenlooper has said he intends to sign the regulatory plan into law.

David Lane, an experienced Denver criminal and civil defense attorney, threatened a lawsuit over the magazine rule. He represents two pot publications, the Daily Doobie and Hemp Connoisseur.

"My own personal belief is that this is a blatant First Amendment violation," Lane wrote in a letter to Colorado Attorney General John Suthers. "It has apparently passed muster with the House and Senate and the governor will be signing it shortly. Please inform Governor Hickenlooper that if this is signed into law, he can expect a First Amendment law suit filed promptly."

7NEWS asked another local attorney, Dan Recht, for his legal opinion on the case.

"That's interesting because the constitutional issue focuses on whether the literature is on something that's legal or not. If the literature is about something that's illegal, it's still protected by the First Amendment but can be more heavily regulated by the government. Whereas, if it's about something that's legal, such as marijuana possession in Colorado, then the government can't restrict it as much," Recht said.

"So this is a new issue, given that marijuana is newly legal in Colorado and I suspect that because it's legal that this section will be found unconstitutional," Recht added.

Three other legal experts told 7NEWS they agreed that the government cannot regulate speech based on content.

Even where a store keeps adult magazines is not regulated.

"Those don't have to be behind the counter, yet those can only be sold to someone over 21. So it seems to me the distinction is not a fair one and frankly not a constitutional one," said Recht.

The governor's office declined to comment on the threat of a lawsuit.

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