THE NINTH CIRCUIT ON FREE SPEECH, FEDERALISM AND MEDICINAL MARIJUANA

The United States Court of Appeals for the Ninth Circuit is under fire again these days. Just last Monday, the Supreme Court unanimously and summarily reversed the California-based appellate court three times.

Summary reversals - reversals so clear that full briefing and oral argument are deemed unnecessary - occur infrequently; in most years the Supreme Court uses the device in fewer than a handful of cases. Three in one day, of one circuit, is, well, extraordinary. (For more data on the Ninth Circuit's generally high reversal rate, see our April 19 column.)

But the real smoke around the Ninth Circuit these days concerns not the summary reversals - which are delivered without fanfare and thus often slip under the national press radar - but rather a recent Ninth Circuit ruling involving medical marijuana. If the Supreme Court were to get hold of this case in the coming months, chances are good that it would become yet another - and much higher profile - reversal.

Background of the Medical Marijuana Case

The case, Conant v. Walters, involves a challenge to Attorney General Ashcroft's policy of threatening federal investigation and revocation of federally granted prescription privileges for any doctors who "recommend" to their patients the use of marijuana for medical purposes.

The dispute arose because the State of California, like a few other states, passed an Initiative (Proposition 215) that decriminalizes, under the State's penal laws, the use of marijuana by individuals who do so upon "recommendation" of a physician.

The Ashcroft Justice Department concedes that a state may choose to decriminalize whatever it wants under state law: What is criminal under California's law is for California to decide. But Ashcroft points out that any possession and use of marijuana - which is federally classified as a Schedule I controlled substance, for which there are no permissible uses - remains a violation of federal criminal law, no matter what the status of marijuana use may be under state law, and no matter whether the marijuana use is medically related or not.

The Justice Department then argues a doctor who prescribes or recommends for patients the use of such Schedule I controlled substances has forfeited his privilege to prescribe narcotics, a federally conferred license reserved, under Congress' Controlled Substances Act, for doctors who act in the "public interest."

A federal trial judge in California rejected the Ashcroft policy, issuing an injunction that prevents the feds from revoking a doctor's drug prescription license (which a doctor needs in order to practice medicine), or even investigating the doctor, solely on the basis of his having recommended marijuana to patients.

The third judge, Ronald Reagan-appointed Alex Kozinski, who is often characterized as having libertarian instincts, joined in this First Amendment reasoning, but also argued that the Ashcroft policy violates the "new Federalism" cases - decided by the Supreme Court over the last decade - that try to insulate state government from federal bullying.

The Decision Illustrates Some Ninth Circuit Patterns

This medical marijuana decision is representative of Ninth Circuit actions that draw national criticism in a few ways.

First, notice that although two of the three judges on the Ninth Circuit panel are Democratic appointees who (like a majority of the Ninth Circuit as a whole) are considered left of center, they were joined by a Republican appointee who is decidedly not liberal. That phenomenon of liberal and conservative Ninth Circuit judges coming together to take controversial actions is not uncommon.

Consider, for instance, the inflammatory "one nation under God" case (we think it more accurate to describe the case this way than as the "Pledge of Allegiance" case). That decision, handed down this summer, was authored by a somewhat conservative Richard Nixon appointee, but was joined by a notoriously liberal Carter appointee. What this suggests is that many Ninth Circuit judges who may be divided by ideological differences are nonetheless united in their fearlessness of controversy.

Second, the Ninth Circuit often embraces analysis that enjoys a surface plausibility, but which does not reflect a careful attention to deep constitutional values and reasoning. Like the Ninth Circuit's Establishment clause interpretation this summer, the First Amendment and federalism arguments advanced in the recent marijuana decision seem convincing enough, until one scratches beneath the surface and asks tough questions the court glossed over.

A First Amendment Critique of the Opinion

As to the free speech rationale, the Ninth Circuit failed to satisfactorily acknowledge that the First Amendment has traditionally allowed the government to regulate the professions in content-based ways. There may be a right to speak out in favor of medical marijuana, but that does not mean there is a right to do so as a doctor.

Imagine, for example, that a lawyer - rather than a doctor - was "recommending" to his client the use of an illegal drug. Even though such a recommendation would be "protected" by the First Amendment in that the lawyer could not be arrested and jailed for his speech (unless he was inciting his client to imminent unlawful conduct), there is no serious question but that the lawyer could be disciplined by the State Bar (and possibly stripped of his license to practice law) on the basis of his actions. This discipline and disbarment would be completely consistent with the First Amendment.

None of this is to say that government can dole out prescription privileges based on political viewpoints or party affiliations or government loyalty oaths. Clearly, some content-based conditions attached to the privilege of practicing medicine would violate the First Amendment.

Moreover, if government is forcing or encouraging doctors to give inaccurate or misleadingly incomplete information to patients, then free speech and privacy principles may converge to call such regulation into constitutional doubt. For example, in the famous and controversial case of Rust v. Sullivan, where the Supreme Court upheld by a 5-4 vote the so-called abortion gag rule imposed on doctors receiving federal funding, the Court did not adequately address the way in which the conditions imposed on doctors may have led them to affirmatively mislead their patients.

The Ninth Circuit was thus correct in the medical marijuana case to identify the First Amendment as a serious issue. It was overly simplistic and mechanical, however, in resolving that issue without addressing any of these complexities.

The (Over)Breadth of the Injunction

A similar critique can be made of the Ninth Circuit's holding that mere investigation of a doctor who recommends marijuana can be enjoined. Speech that is fully protected by the First Amendment (that is, speech that cannot be made the basis of any punishment) may be a permissible reason why authorities might investigate the speaker.

For example, when police target White Supremacy organizations for inquiry when investigating a seemingly race-inspired murder, even if police do so because of the message contained in fully-protected literature written by the organizations, the First Amendment is not offended.

So too, if the feds suspect that some doctors who "recommend" marijuana might also aid and abet their patients' acquisition of the illegal drug, such suspicions - and investigations generated by them - do not necessarily violate free speech.

Moreover, for the judicial branch to enjoin the executive branch from investigating wrongdoing raises complicated separation of powers problems that the Ninth Circuit did not even acknowledge, let alone address.

Here again, though, we are not arguing that a judicial ban on investigation could never be warranted by free speech principles. Sometimes, government can use its investigatory powers to harass political opponents, which does violate the First Amendment. But the Ninth Circuit did not begin to show such a pattern of harassment here.

Nor does Judge Kozinski's federalism approach provide any easier route to reach the Ninth Circuit's result.

Judge Kozinski argues that by revoking doctors' licenses, the federal government has prevented California from decriminalizing marijuana in its chosen way. "In effect," writes Kozinski, "the federal government is forcing the state to keep medical marijuana illegal. [And] preventing the state from repealing an existing law is no different from forcing to pass a new one [which everyone agrees the federal government cannot do]; in either case, the state is being forced to regulate conduct that it prefers to leave unregulated."

If the federal government were forcing California legislators or police to regulate on its behalf, there would be a problem under existing Supreme Court cases. But the feds are doing no such thing. Instead, they are simply regulating doctors themselves, and telling California that it may not immunize doctors from otherwise valid federal regulation.

To see the fallacy of Judge Kozinki's argument, imagine that California had decriminalized marijuana use not on a recommendation of a doctor, but rather only if a doctor participates in the actual administration of the drug (on the theory that only a doctor can ensure the dosages are truly medicinal.)

Certainly a doctor who assists a patient in actually using the marijuana can be regulated under federal law, notwithstanding that this federal regulation may displace - and thus make difficult the accomplishment of - California's objectives. But if the feds can regulate doctors' administration of marijuana in the face of California's wishes, why can't the feds regulate doctors' "recommendation" of marijuana even though California would prefer otherwise?

A Better Path to Have Followed

While not persuasive on its own terms, Judge Kozinki's invocation of federalism does raise another, perhaps more convincing, possibility to justify the Ninth Circuit's result.

The real question in this case is not whether the federal government can regulate doctors in this way, but whether Congress has chosen to do so - whether, that is, Congress wants the Justice Department to use the Controlled Substances Act to regulate doctors' conduct which heretofore had been left to state and local control.

The only phrase in the Controlled Substance Act the Ashcroft Justice Department is invoking to support its new policy is the provision saying that licenses to prescribe drugs should be granted to promote "the public interest." That may be a slender reed on which to rest Ashcroft's interpretation of the Act.

Relatedly, we could imagine construing the phrase "public interest" narrowly in order to steer clear of the First Amendment questions - noted earlier - that otherwise might arise. Courts are often told to construe statutes narrowly so as to avoid constitutional questions, if possible.

A Remand to Congress, in this Case, is not a Bad Idea

But under our alternative tack, the First Amendment and federalism ideas would not be absolute barriers to federal action; instead they would simply be the bases on which the matter was sent back to Congress. Congress, in turn, could take these potential problems into account in deciding how aggressively it wants the federal executive branch to be.

Remanding to Congress in this kind of a controversial case - where new evidence is emerging all the time to question longstanding and perhaps outmoded views about the vices and virtues of marijuana - seems eminently reasonable to us.

But "eminently reasonable" are two words that don't leap to many people's minds these days when the question of the Ninth Circuit is raised. Whether justified or not, the negative national perception surrounding the West Coast court is going to take a while to extinguish.