(Orginally published in February 2015)
Rumors sometimes fly in small communities, and Craig Daily Press Publisher Renee Campbell caught wind of one the Sunday before Christmas: the local postmaster in the conservative, Western Slope mountain town wasn’t going to mail the newspaper’s upcoming edition.
Rumor turned reality the following day, Campbell learned.
“She had threatened that they would not be mailing our Wednesday edition unless those ads were taken out and there was no editorial coverage about cannabis,” the publisher said.
At issue for postmaster Mary McClellan were two advertisements in the Daily Press — one for medical marijuana and a second for retail marijuana — and a story that contained information about marijuana.
McClellan’s threat to shelve that edition of the paper was based on her incorrectly interpreting the U.S. Postal Service’s national policy concerning “non-mailable” matter.
Thomas J. Marshall, the Postal Service’s executive vice president and general counsel, outlined the policy Dec. 15, 2015, in a letter to the Oregon congressional delegation. The Marshall letter states while marijuana advertisements are technically “non-mailable” because they conflict with the federal Controlled Substances Act, postmasters are not authorized to decide whether material is non-mailable or exclude it from the mail.
Instead, postal personnel are to advise senders about mailing standards. If the sender goes through with mailing the questionable material, personnel are then directed to report the incident to the postal inspector, who could forward the case to authorities.
Campbell reached out to the Colorado Press Association and its attorneys for assistance. The situation was quickly diffused, and the Daily Press didn’t miss getting its edition to readers, nor was the issue delayed.
“They were very helpful,” Campbell said of CPA officials. “The lawyer was on top of it and just really took care of it, contacted the necessary people from the U.S. Postal Service, provided the information, and it was pretty much done.”
Steven Zansberg, a CPA attorney for about 20 years, highlighted the Daily Press and Postal Service marijuana flap in a Jan. 4 article for the Media Law Resource Center. The situation was an example of the conflict that exists between state and federal laws concerning the marijuana industry, he wrote.
Four states — Colorado, Oregon, Alaska and Washington — have legalized marijuana sales for recreational use, while 23 others have legalized sales for medicinal use. However, while states are free to decriminalize sales under state law, marijuana remains a Schedule I controlled substance under the Controlled Substances Act.
Federal law, Zansberg wrote, “remains the supreme law of the land,” making marijuana sales a felony.
However, prosecutors aren’t pressing the issue in Colorado, taking cues from a 2013 memorandum from Deputy U.S. Attorney James Cole. The Cole memo recognized prosecutorial discretion, but stated “state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.”
“If it wanted to, the federal government could go into all of those states that are currently decriminalized or legalized … and close it down because it remains illegal (under federal law),” Zansberg said. But, he added, federal officials are “not interfering with these state experiments” as long as there are “robust” state regulations in place.
Jerry Raehal, CPA chief executive officer, said the situation in Colorado, more or less, comes down to the “feds saying it’s illegal, but prosecutors are saying they won’t prosecute unless it’s in violation of state law.”
“The analogy I’ve used is we’ve been in the Garden of Eden, and we’ve finally bit the apple,” Raehal said. “The only difference is you’ve been doing it, and now you know it’s a federal sin.”
He said confusion about the marijuana industry has cropped up occasionally for Colorado newspapers, though the Craig incident was notable in that it involved the Postal Service and a threat of holding back newspaper delivery.
“There’s confusion, I think, in part because there was an expectation when the law passed that marijuana advertising would be regulated the same as alcohol,” the CEO said. “They decided to go a different route with that, and created a totally different standard, and within that standard, who is responsible.
“A confusing thing we deal with is it’s actually on the retailer to ensure they understand the criteria and they’re not going to be placing advertising in the wrong places, as opposed to the responsibility being on the media entity. To a degree, that’s a protection for the media entity.”
To get some measure of clarity, Zansberg wrote a letter to John Walsh, U.S. attorney for the District of Colorado, at the end of December, following the Craig “skirmish.” He requested Walsh’s office notify newspapers of any alleged violations concerning marijuana advertising, as well as CPA, and provide “the newspaper in question a reasonable opportunity to discontinue and/or cure any alleged violation.”
“Such a commitment from your office to the Colorado Press Association would … eliminate the ‘chilling effect’ on freedom of the press that is posed by the uncertain boundaries of what the law forbids,” Zansberg wrote.
Walsh answered the letter in mid-January. Although he didn’t commit to CPA’s requests, the U.S. attorney wrote his office would likely “reach out in advance to engage in dialogue to attempt to resolve the matter” before prosecuting.
Zansberg said Colorado newspapers should be encouraged by Walsh’s response.
“It goes a long way to giving publishers a lot of assurance that they’re not going to suddenly have a federal agent knocking on their door and issuing a criminal summons because they run a marijuana ad,” he said.