Department has decided that criminalizing marijuana - a
perfectly defensible position - also requires criminalizing
talking about marijuana. That's the upshot of the decision
to appeal the ruling of the U.S. Court of Appeals for the Ninth
Conant v. Walters, which barred the government from
prosecuting doctors who inform patients about the benefits of
Federal policy on
medical marijuana has grown more inflexible even as the
scientific community's view of its efficacy grows more fluid.
Marijuana, like other controlled substances, is available only
in tightly regulated situations. The government still funds some
clinical trials for cannabis, but that's about it; the guy on
the corner selling weed in dime bags is probably not covered by
a federal grant.
In the mid-1990s,
several states passed laws permitting doctors to prescribe
marijuana to patients for whom other treatments had failed. In
response, the Clinton Administration issued regulations
clarifying that there were no exceptions in the federal drug
laws for medical use of marijuana, and threatening doctors who
prescribed it with revocation of their license to prescribe
That policy was
upheld by the U.S. Supreme Court two years ago in
United States v. Oakland Cannabis Buyers' Coop. The
doctors behind the Conant case do not challenge that
But the federal
response to the state medical marijuana laws also included a gag
order, first sought by the Clinton Administration, that is the
subject of Conant. The gag rule was in the form of
regulations barring doctors from even recommending
marijuana to their patients, even if the doctors made no effort
to prescribe. A federal district court immediately enjoined
enforcement of that part of the law, and the Clinton
Administration was content to let matters lie.
1999, the National Institute of Medicine of the National Academy
of Sciences released its two year long study of the issue,
undertaken at the request of the White House. It concluded that
marijuana had therapeutic value, and that for some fraction of
patients, marijuana was superior to other available treatments.
Fast forward to
the present. Recently, the judge who entered the original
injunction against the gag rule decided to make it permanent.
The Justice Department appealed to the Ninth Circuit - and lost.
Now the Justice Department is taking the case to the Supreme
Medical Marijuana gag Rule Violates the First Amendment
does not involve doctors who prescribed marijuana. It doesn't
involve doctors who grew it or gave it away. At issue is simply
the right of doctors to say - and patients to hear - something
nice about the medical use of cannabis.
While the First
Amendment looks askance at most restrictions on speech, this
particular regulation is a three-time loser - a viewpoint based
restriction on professional speech implicating a matter of
intense public interest.
The law is a
viewpoint-based restriction because it punishes only doctors who
recommend medical marijuana - that is, who tell patients
marijuana might be good for them. It does not punish doctors who
disparage marijuana as a course of treatment.
government is not supposed to tell us what to think, which is
why the law is so hostile to restrictions on speech keyed to the
viewpoint expressed by the speaker. In a marketplace of ideas,
such restrictions are the equivalent of price controls. The
government isn't supposed to set the value attached to ideas,
though; that's our job, and under the First Amendment, our
The law is also
troubling because it interferes with a patient's right to hear
what her doctor has to say. The courts are highly solicitous of
our right to seek advice from professionals. Recently, in
Legal Services Corp. v. Velazquez, the Supreme Court
struck down a law barring lawyers in federally funded legal
clinics from advising welfare recipients about challenges to the
These rights are
no less urgent when it comes to medical professionals, and maybe
even more so. Courts have long recognized the importance of the
doctor-patient relationship. While the government protects our
health by regulating available courses of treatment, courts have
traditionally refused to interfere in what doctors and patients
say to one another, and will not assume, when reviewing such
regulations, that doctors will give medically unsound advice or
that patients need to be protected from what a medical
professional views as the truth.
The law is
particularly quixotic given the government's continued conduct
of clinical trials involving marijuana. Under the policy, a
doctor could probably be punished for telling a patient about
the mere existence of such trials. Surely the Department of
Justice will not be prosecuting those who administer grants for
the Department of Health and Human Services.
Justice Department's Defense of the Law is Unconvincing
In the teeth of
all this First Amendment law, the Justice Department has
defended its position by arguing that a doctor's advice about
medical marijuana may just motivate someone to try to get his
hands on some marijuana - in other words, to break the law.
doctors are not allowed to conspire with or aid and abet their
patients in getting marijuana, but all of that is already
illegal. This policy is aimed at something short of that - a
doctor who simply tells a patient, "marijuana would help."
could, conceivably, motivate someone to go out and buy
marijuana. It could also motivate him to write his
congresswoman, sign a petition, or take out a subscription to
High Times. None of these results is any more likely than
the other, and most of them are not only legal, but at the core
of what the First Amendment protects - expressive activity about
matters of public concern, which is exactly what the medical use
of marijuana is.
possibility that a patient would go out and buy marijuana
doesn't even approach the exacting legal standards for
criminalizing speech. The government is allowed to restrict
speech when it is likely to lead to illegal conduct, but the
connection - between speech by one and action by another - must
be very, very close. The old formulation required that the
speech present a "clear and present danger" - something akin to
shouting "attack!" to an already angry mob.
While the law in
this areas has been refined, it has not really changed. If the
government wants to limit speech because it may incite crime,
then the speech must be intended to do so and be very likely to,
imminently, not at some undefined point in the future. The fact
that a doctor's statement about the efficacy of marijuana may
lead a patient to try to secure some is not a set of facts
remotely similar to those rare situations in which this has
served as a permissible basis for squelching speech.
In light of
current law, it is nearly impossible to imagine a Supreme Court
opinion faithful to our First Amendment jurisprudence that would
leave in place the government's gag order on doctors' speech
regarding medical marijuana. Such circumstances call for
restraint - not only by the judicial branch, but by the
executive branch that appears before it.