Does Facebook hate cannabis?
APPARENTLY, YES. Instagram is pretty hard on marijuana, too. Twitter is better. Tumblr also seems good, and Friendster is "taking a break."
Earlier this year, my law firm was treated to a primer in internet censorship when Facebook banned us from promoting our blog and its posts. (Our blog, cannalawblog.com, is pretty widely read.) Why does Facebook block content promoting Canna Law Blog? According to its advertising guidelines and some form emails we received, one "may not promote or facilitate the sale or consumption of illegal or recreational drugs, tobacco products, or drug or tobacco paraphernalia."
Neither Canna Law Blog nor its Facebook page have ever promoted or facilitated the sale or consumption of anything, including drugs or tobacco. That's not our bag. In fact, the person who runs our Facebook page studiously deletes and bans users who try to use it for selling anything, including weed. The goal of Canna Law Blog is to educate readers and stimulate discussion about weed, weed laws, weed business, and so on. That's it.
Facebook's blanket policy suppresses the exercise of political speech rights and that frustrates many people on a daily basis. Instagram is similar. In 2013, Instagram banned #weed from its site (along with #boobs and #JamesMotherF*ckingFranco). Instagram continues to shut down accounts that show cannabis images, whether for medicinal or recreational use—even in states like Oregon with legal marijuana. Instead, marijuana political speech (in 2015!) is curtailed by social media's boorish restrictions.
How do they figure? Well, the difference between political and commercial speech is typically pretty stark. Our Constitution's First Amendment provides the most protection to political speech, which includes advocacy for marijuana legalization and commentary on marijuana social issues. With commercial speech, on the other hand, the government can more easily restrict advertisement of a product or service.
In a famous 1979 case, the US Supreme Court set out a four-part test to determine whether government regulation of advertising speech is valid: (1) Does the advertisement involve lawful activity? (2) Does the government have a substantial interest? (3) Does the regulation advance a substantial government interest? (4) Is the regulation the least restrictive means of advancing the substantial government interest?
Of course, Facebook and Instagram are not the government. They are private, non-governmental entities. Our First Amendment does not bind them. Still, due to current federal marijuana laws, Facebook's prohibition on advertisements for selling marijuana is understandable. The company wants to avoid the remote possibility of any US Department of Justice charges in aiding and abetting the sale of a federally illegal drug. However, Facebook should recognize the difference between talking about marijuana issues, and actually trying to sell weed.
Everyone (including the minority of Americans who oppose marijuana legalization) loses out when social media sites quash free speech and censor legitimate content. With the power wielded by social media, platforms like Facebook and Instagram are the new town square, after all. #SorryNotSorry
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