Federal Judge Sides With Cannabis Grower in Free Speech Case

Cannabis advocates who wanted to set up an informational booth at the state fair were met with restrictions that have been deemed unreasonable.
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A federal judge has ruled that a New Mexico medical cannabis cultivator’s rights were violated when tight restrictions were imposed on its state fair application. United States District Court Judge James Parker said in a ruling released last week that Expo New Mexico, the venue for the state fair, violated the First Amendment rights of Ultra Health Inc. by placing unreasonable limits on the items the company could display in its booth at the state fair.

“The State Fair’s restrictions … as applied to Ultra Health’s 2017 State Fair application were unreasonable in light of the purpose of the forum and the surrounding circumstances and therefore violated Ultra Health’s First Amendment right to free speech,” Judge Parker stated in his ruling, according to a press release from the company.

Duke Rodriguez, the CEO for Ultra Health, said that that the court’s ruling “is a clear victory for cannabis advocates in New Mexico and across the nation. Judge Parker’s recognition that medical cannabis producers’ free speech should be protected is a first-of-its-kind ruling defending the right to fully educate and inform the public on the benefits of cannabis.”

Ultra Health had applied for a booth at the 2017 New Mexico State Fair in order to share information with the public about the benefits of medical cannabis. The company did not plan to display or sell any cannabis or cannabis products at the fair. In 2016, the company’s booth included a live cannabis plant and the company was told to leave on the first day of the event by state police.

Unreasonable Restrictions

Raina Bingham, the fair’s concessions director, emailed the company and wrote that Ultra Health would not be permitted to have cannabis plants or products in its booth and would be prohibited from displaying any items used to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body any type of cannabis or other controlled substance” or images of any of those items, according to a report from the Albuquerque Journal.

The company decided not to participate in the fair and filed a lawsuit against Bingham, Larry Kennedy, the chairman of the New Mexico State Fair Commission, and Dan Mourning, the general manager of Expo New Mexico.

“By the plain language of Ms. Bingham’s statement,” the company wrote in its court filing, “Ultra Health would be precluded from bringing a shovel to its informational booth, and would also be precluded from bringing a picture of a shovel, since a shovel may be used to ‘cultivate’ or ‘plant’ a cannabis plant.”

Parker found that the restrictions were subjective, arbitrary, and overbroad and violated the company’s First Amendment right to free speech. While the judge agreed with the defendants’ right to promote a family-friendly event, it had exercised “unfettered discretion to conclude what constitutes ‘family friendly’ by relying almost entirely on their subjective sensibilities and respective personal opinions.”

“For example, Ms. Bingham approved Cutco Cutlery’s 2017 State Fair applications despite an explicit prohibition on knives,” Parker wrote. “Ms. Bingham testified that even with a prohibition on firearms, the State Fair would allow a hunting and fishing store to display photographs of its merchandise, including shotguns sold in its store.”

The judge found that the state fair is a “limited public forum” and organizers have a right to exercise discretion in the selection of vendors.

“However, they must do so reasonably,” he wrote.

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