/>iIn an April 2023 blog post, we questioned the constitutionality of Mississippi’s regulations that restrict medical cannabis businesses from advertising. And, in that post, we observed that challenging those regulations under the United States Constitution would potentially face unsurmountable legal hurdles:
While courts use the same analysis under either federal or state law, any challenge to the Mississippi regulations would still need to be brought under the Mississippi Constitution. Remember, marijuana is still a Schedule I drug under the Controlled Substances Act. Any claim for free speech protection brought under the U.S. Constitution would almost certainly be moot because the sale of medical cannabis (although legal under Mississippi law) is still federally illegal (see Montana Cannabis Indus. Ass’n v. State, 368 P. 3d 1131 (Mont. 2016); (“Because federal law governs the analysis of this issue, we conclude that an activity that is not permitted by federal law – even if permitted by state law – is not a “lawful activity” within the meaning of Central Hudson’s first factor.”)).
While I am certain the Fifth Circuit did not consider our blog when it affirmed dismissal of a suit claiming Mississippi’s advertising regulations are unconstitutional last week, it did, nonetheless, base its ruling entirely on the “lawful activity” prong of the Central Hudson test that we referenced.
Writing for the court, Judge Jerry Smith did “quick work” in his opinion to affirm the dismissal, focusing on the very first factor of the oft-cited Central Hudson test that state and federal courts almost universally apply to evaluate restrictions on commercial speech (Cocroft v. Graham, No. 24-60086, 2024 WL 4866863, at *1 (Nov. 22, 2024)). That factor says that commercial speech won’t be protected under the federal constitution unless that speech concerns “lawful activity” (Cent. Hudson Gas & Elec. Corp v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980)). Indeed, Judge Smith aptly observed early in his opinion that the federal illegality of the activity sought to be advertised began and ended Clarence Cocroft’s suit:
This case boils down to whether medical-marihuana transactions are ‘lawful’ commercial activity in Mississippi . . . [as] Supreme Court precedent teaches that the lawfulness of the underlying commercial activity is a ‘threshold matter’ in determining whether related commercial speech comes with in the ambit of the First Amendment (Cocroft, 2024 WL 4866863, at *2).
Because “[m]arihuana transactions are illegal in every state by virtue of federal law… no commercial speech proposing such transactions ‘concern[s] lawful activity’” (quoting Cent. Hudson, 447 U.S. at 566, 100 S.Ct. 2343).
Plaintiffs did not really quibble with these threshold determinations; they instead advanced a “same sovereign” argument, which Judge Smith described as follows:
[B]ecause Mississippi has not exercised its power to prohibit medical marihuana, the First Amendment does not authorize Mississippi to exercise its “concomitant power” to regulate commercial speech proposing medical-marihuana transactions. The plaintiffs thus advance a kind of “same sovereign” theory of commercial-speech regulation: Only the sovereign that enacted the law regulating the underlying conduct has the power to enact laws restricting related commercial speech. It is the exercise of the state’s own “power to prohibit a product,” the plaintiffs say, that triggers its “limited power to prohibit speech about that product.” The plaintiffs urge a reading of Central Hudson that does not merely ask, “Is this product illegal?” but instead inquires, “Has the jurisdiction that is banning this commercial speech first prohibited the commercial conduct it proposes?”
The Fifth Circuit rejected the plaintiffs’ argument because Central Hudson focuses on the status of the activity as being lawful, not the identity of the sovereign that enacted the speech restriction. In a nutshell, the court found that a state, which may not have deemed an activity unlawful and even when it expressly deemed an activity as lawful (like Mississippi did with medical marijuana), can avoid federal First Amendment scrutiny if the activity is unlawful under federal law: “[i]t is constitutionally irrelevant whether the state or federal government imposed the status of illegality.”
This opinion doesn’t necessarily end the plaintiffs’ efforts. They may elect to appeal this decision to the U.S. Supreme Court. Alternatively, the plaintiffs could challenge the regulations under the Mississippi Constitution in a Mississippi state court — a pathway that may be more successful based on the Fifth Circuit’s recent holding — or they may decide to let the litigation conclude and await potential changes to the regulations or legislation that loosen the advertising restrictions. We, of course, will monitor the situation and update as appropriate. Nanana, nananana, nannana…
