Pot as Political Speech

Photo by tanjila ahmed | CC BY 2.0

In a recent Politico article about cannabis concerns along the U.S.-Canada border, a senior American border official warned that Canadians who operate or invest in legal Canadian marijuana companies could be banned for life from entering the United States.

Todd Owen, executive assistant for Field Operations told the news site that the U.S. federal government does not recognize any marijuana business as legal. In a prepared statement the U.S. Customs and Border Protection agency added that “working in or facilitating the proliferation of the legal marijuana industry in US states where it is deemed legal or Canada may affect a foreign national’s admissibility to the United States.”

This raises an interesting legal question. Is investment in the marijuana industry a form of protected political speech according to U.S. law?

Can American border officials prohibit someone’s entry to the U.S. because they don’t like a person’s legal investment portfolio? Yes, they can. But is it constitutional?

In its 2010 ruling Citizens United, the U.S. Supreme Court said it was a violation of free speech to discriminate against a speaker simply because that speaker was a corporation. In the same ruling, the High Court expanded its definition of protected political speech to include corporate financing of political causes and candidates.

So what is “political speech” and would investing in a controversial and politically targeted industry such as legal marijuana qualify as protected political speech?

In 1966, U.S. Supreme Court Justice Hugo Black set down the legal foundation of protected political speech in Mills v. State of Alabama. “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of government affairs.”

Since then, the Court has ruled that any restriction on the offering of political ideas must have a compelling state interest.

In 1975, the High Court ruled a Virginia state law prohibiting abortion providers from advertising in newspapers was an unconstitutional restriction on Free Speech.

If these standards were fairly applied to investors and operators of Canada’s or America’s legal marijuana industry, the Border agency’s actions should be declared unconstitutional gags on Free Speech.

Justice Black reasoned that debate and discussion of government affairs and actions are clearly protected speech. The U.S. government’s actions and attitudes towards legal marijuana inside and outside its borders are clearly political. Several states have legalized medical and recreational marijuana. Therefore there is no national interest compelling the federal government to threaten foreigners who invest in, work for or operate a legal marijuana business in the U.S. or Canada.

The political motivations of the American government towards passive or active players in the legal marijuana business are clear. U.S. Border officials do not recognize the decriminalization of marijuana as legally valid whether they are located in the 9 U.S. states where pot dispensaries are currently legal, in Canada where full legalization is happening in stages or presumably in any of the other two dozen countries where the use of cannabis is legally allowed or tolerated.

American federal law classifies all cannabis as a dangerous and illegal narcotic. Anyone associated with cannabis is therefore a criminal whether they live inside or outside America and regardless of whether they’ve ever used marijuana. A foreigner who owns a share of stock, even a legal stock in a legal American company, now risks a lifetime ban from the land of the free.

America’s criminalization of marijuana began about 100 years ago. From the start, the spread of pot prohibition laws and counter-efforts to lessen penalties and decriminalize it have been overwhelmingly political. President Richard Nixon’s War on Drugs was launched as part of his political war against Blacks and liberals. Countless conservative politicians have campaigned for greater enforcement and harsher laws against marijuana users. Indeed, support for the fledgling marijuana industry and companion efforts to shut it down are inseparable from U.S. politics.

The political purpose of the federal law was clear when the Supreme Court ruled the Feds could continue to arrest and jail very sick people who used medical marijuana even when it was legal in their state. What reason other than politics would compel a court or government agency to jail sick people for taking a legally prescribed medicine?

By contrast, the legal changes to Canada’s marijuana laws began when its Supreme Court ruled the Canadian government could not justifiably stop its sick citizens from using marijuana for its scientifically-proven medical benefits.

If America’s Border agency’s efforts to keep pot investors out of the country are politically motivated, then it is a clear case of restricting commercial Free Speech. The Supreme Court has said commercially protected speech includes the free flow of money and investments to promote political ideas. The mere discussion of legal pot raises a host of political issues and divides people along political lines.

If American agents can ban a person’s entry because they bought shares in a Canadian pot company like Tilray that is legally listed on NASDAQ, where will the encroachment end? President Donald Trump has described America’s trading partners as enemies of his nation and called many foreign trading practices illegal. Could the border agency ban stockholders with investments in Canada’s hostile dairy or lumber industries?

America’s century-old federal laws against interstate commerce in the production and distribution of marijuana should not be applied for unintended purposes. Yet America’s enforcement agents have frequently used the law to target political opponents and terrorize ethnic minorities.

There is no compelling purpose to restrict the commercial free speech of Canadians and other foreigners who invest in legal companies and in particular those who own marijuana stocks bought and sold on U.S. exchanges.

Barry Brown is a Pulitzer Prize-nominated Canadian journalist. He is the author of Humanity: The World Before Religion, War & Inequality.