Does publically smoking a joint in protest of marijuana prohibition enter the realm of the First Amendment; therefore, protecting this dubious act under Freedom of Speech?
Philadelphia NORML Chapter co-chairman Chris Goldstein, who is now facing federal charges for marijuana possession that stem from him chiefing it up earlier this year during one of his “Smoke Down Prohibition” protest on the grounds of Independence Hall, says it is and it does.
“This site is preserved for the First Amendment,” he said. “That’s why we’re here.”
Even though many marijuana activists have been sparking up joints on the grounds of the Liberty Bell in protest against federal marijuana laws since October 2012, the local US Attorney did not start bringing the hammer down on offenders until after the first person was officially cited for this offense in May.
Since then, Goldstein says he has received two violations, with federal officials hell bent on using his latest offense as a reason to make an example out of him. “They’re taking the full weight of the law against us, ostensibly for that single joint,” he said. “They seek to prosecute us for making a stand for cannabis rights.”
However, a spokesperson for the US Attorney office says that Goldstein should not be surprised by the repercussions of his actions because even though President Obama has made comments about the feds having bigger fish to fry, “People should know there are serious penalties for breaking the law on federal property.”
However, Goldstein plans to argue that his First Amendment rights were violated because he was singled out by authorities for protesting drug laws, not being in possession of a controlled substance.
Unfortunately, while the majority of First Amendment cases involving drugs have been more about religious expression than speech, these arguments have still proven to be historically unsuccessful.
Free speech expert and president of the First Amendment Center Ken Paulson says Goldstein will have a tough time convincing a judge that his ill regard for the law was freedom of expression. “First Amendment protection kicks in when there’s some form of expression, a sharing of ideas,” he said. “If you disagree with a law, simply breaking it wouldn’t constitute free speech.”
Others believe that Goldstein has a fighting chance as long as his defense can prove burning marijuana was crucial to his protest -- like it was eventually ruled to be with regard to protesters burning the American flag.
“If you can persuade the court that you burnt what you burnt for the purpose of making a point, in this case protesting in favor of legalization and against laws that make marijuana use and possession a crime, that’s what you have to show,” said Alan Howard, a professor at the St. Louis University School of Law. “The good news for the individual is that he probably would be able to get a court to find his smoking marijuana to be symbolic speech.”
“The bad news is that he probably won’t succeed in getting the court to find that his expressive activity is an excuse for violating anti-drug laws,” Howard added. “The problem is that because they have a non-censorial use for punishing his use of marijuana, then the mere fact that they agree or concede that he did it to make a point as a protest won’t suffice to immunize him from criminal liability.”
Goldstein’s intends to argue that his case should be thrown out of court because he has been forced to face stiffer penalties than others caught committing the same crime.
If a jury finds him guilty, Goldstein could serve six months in prison with fines of $1,000.
Still, Goldstein says he does not regret risking a potential prison sentence to help fight against marijuana prohibition. “It’s up to us to do it,” he said.
Mike Adams writes for Playboy's The Smoking Jacket, BroBible and Hustler Magazine. Follow him: @adamssoup; facebook.com/mikeadams73.