I recently read in the Mercury's Cannabuzz column that the post office in Portland may put the kibosh on mail with marijuana ads. WTF?
IT'S TRUE. This is a classic First Amendment problem. I have written here before about how First Amendment free speech rights intersect with people shooting the breeze about weed on social media (Facebook and Instagram are censors; Twitter is not), and you may have recently seen that an Oregon television station quashed an ad for a cannabis event, citing federal broadcast rules. So when the Portland District Office of the US Postal Service announced, "If a mailpiece contains an advertisement for marijuana, that piece is unmailable," it was not so surprising.
Criminal issues aside, advertisements are considered commercial speech in this country. Although the First Amendment protects commercial speech, it does not receive the same amount of protection as other forms of speech, like political speech. In a case called Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the US Supreme Court set out a four-part test to determine whether government regulation of advertising speech is valid. The first prong is "Does the advertisement involve unlawful activity?" Clearly, marijuana ads do at the federal level.
So the feds probably have the power to severely curtail or even eliminate commercial cannabis speech (which would slim this fine publication appreciably). And the feds occasionally do make threats. Fortunately, the threats are almost never followed by action. Given this context, and because suppression of advertisements is not within the US Postal Service's enforcement authority, we will not be seeing the post office attempt to punish newspapers that run pot ads.
Ultimately, this notice is a peculiar PSA from an agency that seems out of touch, for a couple of reasons. First, pot businesses have been advertising in newspapers and magazines, carried by the postal service, for years. (High Times, anyone?) Second, the notice went out from the Portland office, not from US Postal Services headquarters. Third, this local post office directive goes against the current federal policies set forth in the August 2013 Cole Memo, which supports a hands-off federal approach to states with good pot governance.
In a written response to the notice, US Senators Ron Wyden and Jeff Merkley, and US Representatives Suzanne Bonamici and Earl Blumenauer, wrote a letter to Postmaster General and Postal Service CEO Megan J. Brennan. The letter asks how federal postal regulations intersect with state laws that legalize recreational marijuana, with question number one being, "What discretion does a regional postmaster have in enforcing or implementing these policies, specifically in states where marijuana is legal?"
It's a pretty good question.