THE POT PARADOX: LEGAL TO SMOKE, BUT CAN IT BE PROMOTED ON PUBLIC RADIO?

Rick Steves (Image courtesy NYT)

In late October public radio and television travel host Rick Steves paid a visit to Fargo, North Dakota, to advocate for passage of Measure 3. 

The ballot initiative, if approved in Tuesday’s election, will make it legal for adults in the state to consume marijuana for recreational purposes.

Steves has been on the frontline of legalizing pot since the 1970s. He became more vocal in his views when he campaigned for legalization in his home state of Washington in 2012. Voters approved the measure.

For Steves, legal pot is a social justice issue. He told The New Your Times in October [link]:

I am a taxpaying, churchgoing, kid-raising American citizen. If I work hard all day and want to smoke a joint and stare at the fireplace for three hours, that’s my civil liberty.

Steves has helped legal pot initiatives in several states and is a board member of the National Organization for the Reform of Marijuana Laws (NORML).

As more and more states have legalized medical and/or recreational use of marijuana, how to handle it at federally licensed facilities such as broadcasting stations remains murky. Though pot is legal in a growing number of states, possession, sale and/or use of marijuana remains illegal under federal law.

Advertising for recreational pot in

Denver’s Westword newspaper

People at public radio stations generally remain cautious about airing underwriting messages from pot-oriented firms. Spark News reviewed recent posts on the Public Radio Association of Development Officers (“PRADO”) listserv, a popular bulletin board about underwriting practices, and found more questions than answers. Here are a few examples:

• Here in Spokane, Washington we are considering the possibility of accepting donations from recreational marijuana retailers, as well as medical dispensaries and growers. Recreational marijuana underwriting acknowledgements would be made for identification purposes only. Is this okay?

Advertising for recreational pot in

Denver’s Westword newspaper

• I once had an underwriter who wanted to mention in her message that she'scertified for medical marijuana, but when I asked a source at Greater Public, I was told we couldn't mention it since FCC is federal, and still holds that marijuana is illegal.

• Perhaps I should have titled this message "free pot" to get your attention. Now that I do, doesn’t U.S. law override any state initiatives?

• We decided not to accept underwriting from cannabis-based businesses when recreational marijuana became legal here in Colorado. Part of that has to do with federal funding.

• Here in Oregon the marijuana business is booming and they have lots of money to spend (and few banks to put it in). But, with part of our funding coming from the Federal government, which has not yet legalized the use of marijuana, we feel we would be at risk if we opened that door.

THE VIEW FROM WASHINGTON, DC

Ernie Sanchez

For clarification we asked one the best communication lawyers in Washington, DC, Ernie Sanchez, for his perspective. Sanchez is the NPR founding General Counsel and President of the Sanchez Law Firm [link].  

SPARK NEWS: As more and more states legalize medical and/or recreational marijuana, what is the current situation regarding broadcasters and the FCC?

SANCHEZ: There is a yet unresolved conflict between the federal illegal status of marijuana and its increasing legality at the state level.

During the Obama administration, there was some modest effort at reconciling this conflict.  The Justice Department said it would not normally prosecute federal marijuana violations, in states where marijuana is otherwise legal.

The Trump administration, however, reversed courses. Attorney General Sessions has rescinded the Obama policy. This leaves the FCC in a difficult situation. While the FCC is not a primary drug enforcement agency, it is obliged to cooperate with federal law enforcement efforts.  In addition, Attorney General Sessions and FCC Chair Pai, are very close personal friends and political allies. It would be logical to assume that the FCC would likely take direction from the Justice Department on this issue.

Advertising for recreational pot in

Denver’s Westword newspaper

SPARK NEWS: Will the FCC clarity the situation in the near future?

SANCHEZ: The upcoming FCC license renewal cycle, beginning next year, will likely be a test of this issue. If listeners accuse a station of promoting illegal activity, that arguably could be considered at renewal time by the Commission. At the very least. This could delay and complicate the license renewal process.

The legal issue is somewhat broader than past FCC decisions, where a licensee had drug convictions. The Communications Act requires that all licensees must be of "good moral character." In the past, certain felony convictions have been considered disqualifying, if they related to dishonesty. I am not aware of any recent FCC drug related cases. 

SPARK NEWS:  What are the differences between FCC policies and CPB guidelines?

SANCHEZ: The FCC does require various certifications that each licensee has not been barred from federal benefits for drug trafficking or possession. In addition, licensees receiving federal funds (i.e. CPB grantees), are generally required to maintain drug free work places. I am, however, not aware of commercial license holders being required to maintain a drug free workplace.

Look for Rick Steves to continue his advocacy for legal pot is unlikely places. He told The Times:

STEVES: It is boring for me to talk at a Hempfest rally because you’re preaching to the choir. What I want to do is go to churches and Rotary clubs and different organizations and share my beliefs.