A Pulaski County circuit judge ruled yesterday that a long-running medical marijuana case must enter the discovery phase to determine whether Arkansas’s regulation of advertising in the cannabis industry conflicts with First Amendment free speech protections.
The order from Judge Morgan “Chip” Welch did not deliver an immediate win to either Attorney General Tim Griffin or to plaintiff Good Day Farm, the marijuana cultivator challenging the validity of the state’s regulations. Welch gave the parties 90 business days to complete a limited discovery period and scheduled a hearing for 9:30 a.m. on May 21.
Good Day Farm brought its suit against the state early last year and won a partial favorable ruling in June when Welch struck down 27 legislative changes to the state medical marijuana law. The judge did not rule on the portion of the lawsuit challenging the state’s advertising restrictions.
On Dec. 7, the parties delivered oral arguments on the advertising portion of the lawsuit. The case hinges on the “Central Hudson” test, a standard set by the U.S. Supreme Court regarding the government regulation of commercial speech. First, the test says the speech must concern lawful activity. If it does, there must be a substantial government interest in regulating the speech, the regulations must advance the government’s interest, and the regulations must be no more extensive than necessary.
The state argued that that medical marijuana is illegal under federal law and shouldn’t be subject to First Amendment protections. Welch rejected that argument, saying Congress had exempted 47 states, the District of Columbia and four U.S. territories from “the very ‘illegality’ regarding medical marijuana to which the defense refers.”
That means the first part of the Central Hudson test is satisfied, Welch wrote. But whether government has a substantial interest in regulating the advertising in question, whether the regulations advance the state’s interest and whether they’re no more restrictive than necessarry “depends on the State’s rationale and its justification.”
Welch said he was sensitive to the state’s interest in the case but said that interest had not yet been articulated in the court record. Welch said he was “loath to act on an incomplete record.”