California medical marijuana providers, landlords and their dispensary proprietor tenants may not be the only ones in the crosshairs.
The latest escalation of the Obama Administration’s crackdown on medicinal cannabis has one U.S. attorney publicly toying with the idea of pursuing criminal prosecutions and asset seizures for media outlets—radio, television, and weekly newspapers like the one you’re holding right now—who run advertisements for dispensaries, collectives, and other services.
The statements by Laura Duffy, the top federal prosecutor for California’s southern district, which includes San Diego and Imperial counties, came just weeks after the U.S. Department of Justice began sending letters threatening more than a hundred brick-and-mortar medical marijuana providers across the state with prosecution.
Many have since voluntarily shut down. Now Duffy is turning her attention to the media.
“I’m not just seeing print advertising, I’m actually hearing radio and seeing TV advertising—it’s gone mainstream,” Duffy said in an Oct. 12 radio interview on Northern California-based station KQED. “Not only is it inappropriate, one has to wonder what kind of message we’re sending to our children. It’s against the law.”
Santa Barbara County sits on the northern cusp of the Central District of California, whose federal prosecutor, Andre Birotte, Jr., has distanced himself from Duffy’s comments.
“We have not taken any action in relation to targeting any entity that may publish advertisements [for dispensaries],” Thom Mrosek, a spokesman for Birotte, told the Sun. “And I don’t anticipate any such action from our office.”
Whether the federal government plans to follow through with notices to newspapers—or whether Duffy’s statement was simply thinking out loud—remains to be seen. A spokesperson from Duffy’s office did not return repeated calls for comment.
In response, state officials and lawmakers have called for restraint, some outright criticizing the entire crackdown. On Oct. 19, State Sen. Mark Leno and Assemblyman Tom Ammiano, both Democrats from San Francisco, called on the Obama administration to cease their “senseless assault.”
“As if the DOJ doesn’t have better things to do … this is what they identify as the burning issue of the day,” Leno told the Sun. “I think they should sit down with us in the state and tell us what changes they would like to see so they can go back to the unattended business of their department.”
The two lawmakers seem to be in good company. A day later, California Attorney General Kamala Harris also chimed in.
“While there are definite ambiguities in state law … an overly broad federal enforcement campaign will make it more difficult for legitimate patients to access physician-recommended medicine in California,” Harris said in a written statement.
Though dispensary owners and their landlords have received similar threatening letters from the federal government in years past, the latest crackdown is more serious, said William Panzer, an Oakland-based attorney and CalNORML co-director, one of the original authors of California’s Compassionate Use Act of 1996.
Panzer said notices to dispensaries are now coming directly from the U.S. Attorney’s Office, not the Drug Enforcement Administration as they have in the past, giving a specific deadline of 45 days to close shop or face criminal prosecution and asset forfeiture. He said, based on federal law, media outlets should be concerned.
“As a newspaper you should be concerned any time the government is telling you what to print,” Panzer said, adding that the law is “a little ambiguous” but basically prohibits any person from placing an advertisement seeking or offering any Schedule I controlled substance, such as marijuana.
According to Panzer, penalties for violation could possibly result in up to four years in prison—eight years if a publisher had a prior conviction—and some sort of asset forfeiture.
For Tom Newton, executive director of the California Newspaper Publishers Association, it’s that ambiguity in the law that has some publishers worried.
“What I continue to believe is to pursue newspapers as opposed to the advertisers goes against advertising law. Advertisers are supposed to be liable if their product is unlawful or if the ad is untruthful,” Newton said. “Newspapers, on the other hand, who publish thousands of ads don’t have the resources to follow up on each one.”
As for newspaper and magazine publishers across the state, everyone seems to be taking a “wait and see” approach, though nervous rumblings are starting to surface.
Jason Zaragoza, editor and advertising director for the Association of Alternative Newsmedia (of which New Times, the Sun’s sister paper in SLO, is a member) said that as an association that represents 130 alternative news organizations—many of which run advertisements for medicinal marijuana services—they are “extremely troubled” by the shift in policy.
“The papers I’ve spoken with are taking this threat very seriously,” Zaragoza wrote in an e-mail to the Sun.
And criminal prosecution is not the only threat. In an industry hit hard by the economic recession, coupled with increased competition from online news sources, the potential loss of a steady stream of reliable advertising revenue could prove devastating for newspapers across the state.
“We have always thought we are accepting ads for a product that is legal in the state of California. We’ve operated as a business that follows state laws, pays taxes, plus we’ve always been glad as a newspaper to help small locally-owned businesses,” said San Francisco Bay-Guardian Executive Editor Tim Redmond, who added that the loss of hundreds of thousands of dollars would “absolutely have an impact” on the operation of the popular weekly.
Jeff Von Kaenel, CEO of the weekly Sacramento News & Review, which has published a special insert issue dedicated to medical marijuana topics since last spring, said that the entire Obama Administration effort has “come out of left field” given U.S. Attorney General Eric Holder’s announcement in 2010 that the administration would not pursue medical marijuana providers.
“What gets me is that they keep talking about kids, but I don’t think there are mass numbers of kids going into marijuana collectives—I think they are going into liquor stores. I don’t understand the reasoning,” Von Kaenel said. “If you don’t support a regulated marijuana industry, then you support an unregulated [industry], which certainly does target children.”
Sun publishers Bob Rucker and Alex Zuniga also addressed the issue.
“It’s odd to be put in a situation where you can follow the law and pay taxes and the next day you could be a criminal,” Zuniga said. “It’s odd to think it could change so quickly.”
Rucker added, “Currently, it’s pretty unclear about which direction this will go. I’m surprised we haven’t heard any official response from the state government where it stands with this federal initiative. Who’s clarifying it for the people who need clarification?”
Staff Writer Matt Fountain can be reached at mfountain@santamariasun.com.
This article appears in Nov 10-17, 2011.