It was U.S. Attorney Laura E. Duffy, Uncle Sam's top barrister in the Southern District of California, who told California Watch on Wednesday that her office is "going to be moving onto [prosecuting publications] as part of the enforcement efforts in Southern California." Duffy said that she couldn't speak for her three counterparts, including U.S. Attorney for Northern California Melinda Haag, but noted that federal prosecutors' efforts on state-legal weed have been coordinated thus far.
Haag, the U.S. Attorney for Northern California and author of cease-and-desist letters sent to at least four Bay Area dispensaries, did not respond to a request from SF Weekly for comment. Josh Eaton, a spokesman for Haag's office -- which has responded with silence to all press inquiries for some months now -- has nothing to say to us.
"We're not commenting on this issue," he said.
Legal and media experts contacted by SF Weekly could not name a situation in which a newspaper shut down due to losses in revenue after federal prosecutors went after advertisers. Still, there is precedent that shows the feds mean business: Google recently shelled out $500 million to the federal government for selling ads to Canadian pharmacies willing to sell generic prescription drugs to Americans.
Newspaper publishers declined to comment on the record, but it's no secret that alt-weeklies, including SF Weekly, rely heavily on the medical marijuana industry for ad dollars -- just pick up a newspaper and see for yourself. Indeed, the additional revenue gleaned from pot ads allowed the Sacramento News and Review to hire additional staff, according to California Report.
Yet this may be a prosecution too far, says Liz Enochs, president of the Northern California chapter of the Society of Professional Journalists. "Regardless of how you feel about medical marijuana, this is about economics -- and, by extension, the First Amendment," she said. "An attack on the business model of news organizations could be seen as a de facto attack on the press."
There's contention that this latest federal move is mere saber-rattling, meant to scare dollars away from medical marijuana. That newspapers challenged in court would likely win, according to Peter Scheer, Executive Director of the First Amendment Coalition, is fuel for that fire.
The government can and does ban illegal advertising, such as an advert for whites-only housing. "However, the illegal status of the service or product must be clear and certain -- otherwise, publishers will self-censor, refusing advertising that is, in fact, constitutionally protected," Scheer told SF Weekly. "In California, where state law says one thing, and federal law says the opposite, publishers can't achieve the requisite degree of certainty."
This ambiguity "confers protection, under the First Amendment, against federal enforcement actions, whether criminal or civil, against them," he said.
In other words, if the federal government is serious about punishing the news for cashing state-legal businesses' checks, it has its work cut out for them. But no amount of First Amendment outrage may be enough save an already-struggling industry from a government-sponsored threat.
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