Strengthening Constitutional Self-Government

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Free Speech That Gives You the Munchies

The New York Times today praises the recent decision of the Ninth Circuit holding that the Federal government cannot prevent doctors from recommending marijuana to their patients, because these restrictions violate the free speech rights of doctors.

It is first worth noting that the op-ed page at the NY Times should really take the time to run their articles past someone with a law degree. O.K., that’s too much to ask. They should at least run them past a regular viewer of Law & Order. Take for example this statement:

The ruling gives new life to the medical marijuana initiative, also known as Proposition 215, which California voters passed in 1996. The law permits seriously ill people to use marijuana on the advice of their physicians, and it says that doctors may not be punished for recommending marijuana to their patients.

Those familiar with the law will recognize this as an overstatement. Last year, the Supreme Court found in analyzing claims brought incidental to Prop. 215 that there is no medical exception to the federal law’s prohibition on manufacturing and distributing marijuana. Thus, under the "new life" of the 9th Circuit’s ruling, a doctor may generally recommend toking, but the pharmacy may not sell it. In fact, if the doctor recommends a "distributor," he could likely be prosecuted for conspiracy to distribute illegal narcotics--something which even the Ninth Circuit opinion entertains. Indeed, the Ninth Circuit recognizes that giving a prescription for the drug would violate federal law. The most a doctor may do is recommend generally marijuana.

More interesting to me is the fact that the NY Times continues its cafeteria-style approach to the First Amendment. It doesn’t like campaign speech (unless of course the campaign speech is by the press--that is sacrosanct), so the First Amendment really doesn’t apply there. It likes liberalized drug policy, so the First Amendment is "core" there. You can fault them for being inconsistent in their legal theory at the Times, but not in the liberal rhetoric.

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