Naked City

In a 36-page opinion delivered Oct. 29, the U.S. 9th Circuit Court of Appeals ordered a permanent injunction preventing the U.S. government from threatening doctors with a loss of prescription-writing privileges if they discuss the use of medical marijuana with their patients. The feds' appeal had sought to remove a 1997 injunction prohibiting the U.S. Drug Enforcement Administration from investigating or revoking doctor licenses based solely on a doctor's discussion or recommendation of marijuana use. But, a three-member panel of the 9th Circuit ruled the DEA policy was unconstitutional and left the ban in place. "The government's policy in this case seeks to punish physicians on the basis of content of doctor-patient communications," Chief Judge Mary Schroeder wrote for the court. "Only doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy. Moreover, the policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient. Such condemnation of particular views is especially troubling in the First Amendment context."

Schroeder wrote that the case in question, Conant v. Walters, was replete with examples of how the threat of a federal investigation, and the possible revocation of a license, had chilled an open dialogue between doctor and patient. Further, she noted that throughout the litigation government officials had been incapable of "articulating exactly what speech is proscribed" by the DEA policy, "describing it only in terms of speech the patient believes to be a recommendation of marijuana," she wrote. "Thus, whether a doctor-patient discussion of medical marijuana consists of a 'recommendation' depends largely on the meaning the patient attributes to the doctor's words. This is not permissible under the First Amendment."

In a concurring opinion, Judge Alex Kozinski sought to highlight the burden the federal policy would place on both doctor and patient. Ultimately, he concluded that patients and the state would likely suffer the most harm. California voters overwhelming passed a medical marijuana law in 1996, Kozinski notes, making the federal policy a distinct intrusion on the state's rights. "In my view it is the vindication of these latter interests -- those of the patients and of the state -- that primarily justifies the district court's highly unusual exercise of discretion in enjoining the federal defendants from even investigating a possible violation of the federal criminal laws."

The 9th Circuit oversees 13 western states -- the largest U.S. circuit -- seven of which have adopted medical marijuana laws. See the full text of the opinion at www.ca9.uscourts.gov/ca9/newopinions.nsf.