When I was in college, I took a class on debating. As an exercise, the professor set up a debate on the legalization of marijuana. He assigned the “con” side to me. I found that until the early 1900s, marijuana was legal (as was cocaine).

Whatever the individual states have done, marijuana is still illegal under federal law. The Department of Justice (DOJ) gives the individual US Attorneys discretion on enforcement. In California, recreational marijuana is generally legal (which does not explain the laws our legislature enacts).

Despite that, a few years ago, my client leased space in an industrial park to a marijuana dispensary. The local US Attorney issued a notice of forfeiture of the entire industrial park, about two acres worth of floor space.

After researching the issue, we concluded it was better to pay a hefty fine than to risk loss of the entire industrial park. I am not up on the current state of marijuana laws, but there are dispensaries that advertise their product on billboards throughout Southern California.

Despite that, marijuana is somewhere between alcohol and cocaine on the legality scale. I suspect there is a good chance that commercial free-speech cases (such as Central Hudson) will be not be enough to overcome Ohio’s ban on marijuana advertising.

We won a business-license tax case on First Amendment grounds many years ago, and the First Amendment argument for marijuana in states where it is legal is stronger than for unambiguously illegal drugs. At the same time, be prepared to spend substantial attorney fees in support of a far from certain result.

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