Part of Maine’s legal pot proposal is unconstitutional

An attendee holds out several marijuana buds at a 2013 High Times event in Seattle. (Jason Redmond - Reuters)

An attendee holds out several marijuana buds at a 2013 High Times event in Seattle. (Jason Redmond – Reuters)

It may seem counterintuitive, but the marijuana legalization question headed to Maine’s 2016 ballot contains an almost certainly unconstitutional restriction on some of the plant’s biggest boosters — magazines like High Times.

The conflict with First Amendment guarantees to free speech and a free press only affects a small portion of the law and predates the October campaign merger of two groups that were dueling to send different legalization questions to voters.

In that deal, groups united around the proposal from Legalize Maine, a group of small medical marijuana growers. Now, the campaign is being run by the other group, led by the national Marijuana Policy Project.

Buried deep within the law is one paragraph that says a magazine “whose primary focus” is marijuana can be sold “only in a retail marijuana store or behind the counter in an establishment where persons under 21 years of age are present,” similar to how pornography is sold.

That would be a new restriction under Maine law, throwing a small bone to legalization opponents and aiming to reduce children’s exposure to pro-marijuana messaging.

But a similar provision was lifted from a rule adopted by Colorado lawmakers. In 2013, the state faced two lawsuits over it and state’s attorney general said he wouldn’t defend it in court. A federal judge later overturned the rule.

Sigmund Schutz, a Portland media attorney who has represented the Portland Press Herald and other Maine outlets, agreed that the Maine proposal poses constitutional problems, calling it “unenforceable.”

In Colorado, the Marijuana Policy Project fought that rule, with a spokesman telling Reuters that it was “absolutely absurd” and lawmakers must “get over their reefer madness.”

But as a necessity of the compromise deal with Legalize Maine, the campaign group led by the Marijuana Policy Project is defending it here, with David Boyer, the legalization campaign manager, saying it “attempts to strike a balance” between freedom, safety, individual liberties and community standards.

“The community has the opportunity to approve it, and if members of the community wish to challenge a particular provision within it, they will have that right, just as they would with any other law,” Boyer said.

Michael Shepherd

About Michael Shepherd

Michael Shepherd joined the Bangor Daily News in 2015 after covering state, federal and local issues for the Kennebec Journal for three years. He's a Hallowell native who now lives in Gardiner. He graduated from the University of Maine in 2012 and is a graduate student at the University of Southern Maine's Muskie School of Public Service.