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To survive First Amendment scrutiny, the federal marijuana policy must have the requisite narrow specificity. The fact that whether a doctor-patient discussion of medical marijuana constitutes a "recommendation" depends largely on the meaning the patient attributes to the doctor's words is not permissible under the First Amendment.
Plaintiffs were patients suffering from serious illnesses, physicians licensed to practice in California who treated patients with serious illnesses, a patient's organization, and a physician's organization. In 1997, plaintiffs filed a lawsuit in federal district court against defendants, several agencies and officials of the federal government. Plaintiffs sought to enjoin enforcement of the government policy insofar as it threatened to punish physicians for communicating with their patients about the medical use of marijuana. The district court entered a preliminary injunction a few months later; the government did not appeal that order. In 1999, another federal district court judge entered a permanent injunction, which was essentially the same as the preliminary injunction in that the government was enjoined from: (i) revoking any physician class member's federal drug enforcement agency registration merely because the doctor made a recommendation for the use of medical marijuana based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. The government appealed. The fundamental disagreement between the parties concerned the extent to which the government could regulate doctor-patient communications without interfering with First Amendment interests.
Did the government's professed enforcement policy threaten to interfere with expression protected by the First Amendment.
The court affirmed the district court's entry of the permanent injunction. The court noted that the history of the litigation demonstrated that the injunction was not intended to limit the government's ability to investigate doctors who aided and abetted the actual distribution and possession of marijuana. 21 U.S.C.S. § 841(a). The government failed to provide any empirical evidence to demonstrate that the injunction interfered with or threatened to interfere with any legitimate law enforcement activities. Nor was there any evidence that the similarly phrased preliminary injunction that preceded the permanent injunction, which the government did not appeal, interfered with law enforcement. The district court, on the other hand, explained convincingly when it entered both injunctions how the government's professed enforcement policy threatened to interfere with expression protected by the First Amendment.