Aiding and Abetting: Broadcasters Take a Gamble When Accepting Cannabis Advertisements

Broadcasters should not rely on the fact that prosecutors have previously focused on the advertiser of the business, not the advertising medium, according to a lawyer who represents broadcasters.

Many broadcasters in states where marijuana is legal have accepted the business of both growers and dealers who have sought to advertise their products and services. Since rescission of the Cole Memorandum, which de-prioritized enforcement of federal marijuana prohibition against people and businesses who complied with state law, Attorney General Jeff Sessions went a step further by directing all U.S. Attorneys to pursue prosecutions related to marijuana activities. 

Lawyer Gregg Skall represents broadcasters and other parties in their regulatory dealings before the Federal Communications Commission ("FCC") and in their commercial business dealings. A few months after the release of the Cole Memorandum, Skall notes:

[W]hen dealing with criminal law, special considerations come into the analysis. For example, 18 U.S.C. § 2 provides that whoever aids or abets the commission of a crime is punishable as a principal. The DOJ Criminal Resources Manual states that acts of the perpetrator become the acts of the aider and abettor and the latter can be charged with having done the acts even when the principal is not tried, convicted or even identified. Therefore, while it is extremely rare for a publisher to be tried for the crime of an author or advertiser, the situation surrounding marijuana use might prove to be so high-profile and controversial that an aggressive U.S. attorney might consider prosecuting the advertising medium.

Skall's current view is that broadcasters who accept the business of growers and dealers are in danger of losing their federal licenses. Those inclined to think there is a First Amendment right to advertise marijuana products and services should, he warns, think again. Broadcasters cannot rely on the First Amendment when advertising products or services that are illegal under federal law.

States have sought to advertise their products and services with broadcasters, and many have accepted their business. That decision, however, has always been risky, given the uncertain effect of the Cole Memorandum and its many qualification requirements. Marijuana remains classified as an illegal drug under the Controlled Substances Act and in a case called Raich v. Gonzales, the Supreme Court ruled the federal government can prosecute medical marijuana patients, even in states with compassionate use laws. Some broadcasters took comfort in the fact that prosecutions have nearly always been of the advertiser business and not the advertising medium. Yet, as I have written before, taking cannabis advertising is at most a calculated bet and that bet just got a lot worse."

iven the current administration's views on marijuana and the Attorney General's direction to U.S. Attorneys to pursue prosecutions related to marijuana activities, the bottom line is that broadcasters should not accept cannabis advertising until there is further clarification or Congress acts to reverse the effect of the decision to rescind the Cole Memorandum. Skall further warns that, "[A]s federal licensees, a broadcast licensee could very well endanger their license renewal, or even risk license revocation and criminal prosecution . . ."

Obtaining a license from the FCC is no small feat. Broadcasters that have paid fees, submitted applications, and complied with specific FCC licensing requirements may not want to risk their business for the sake of an advertising slot purchased by a business that is illegal under federal law.

--Kindal Wetuski