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Marijuana Magazines Preliminary Injunction Brief

Marijuana Magazines Preliminary Injunction Brief

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Published by Michael_Lee_Roberts

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Published by: Michael_Lee_Roberts on May 30, 2013
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04/25/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADOCivil Action No.TRANS-HIGH CORPORATION, d.b.a. HIGH TIMES MAGAZINE,THE DAILY DOOBIE, LLC, a corporate entity; anTHE HEMP CONNOISSEUR, LLC, a corporate entity;Plaintiffs,v.THE STATE OF COLORADO; and JOHN HICKENLOOPER, in his official capacity as Governor of Colorado;Defendants. _________________________________________________________________ 
BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
 _________________________________________________________________ Plaintiffs, by their attorneys David A. Lane and Darren M. Jankord of the lawfirm of KILLMER, LANE & NEWMAN, LLP, hereby submit this Brief in Support of their Motion for Preliminary Injunction.
I
.
 
I
NTRODUCTION AND
B
ACKGROUND
 
This is a civil rights action for injunctive relief arising under 42 U.S.C. §1983 and 28 U.S.C. § 2201,
et seq
., as well as attorneys fees pursuant to 42U.S.C. § 1988, due to Defendants’ current and imminent violations of Plaintiffs’rights guaranteed under the First Amendment to the United States Constitution.Plaintiffs are seeking to enjoin Defendants from enforcing Section 12.43.4-202(3)(2)(II) of House Bill 13-1317, which unlawfully infringes on PlaintiffsFirst Amendment rights to distribute political speech. The legislation in questionlimits the distribution of any magazines “whose primary focus is marijuana or 1
 
marijuana businesses” be limited in their circulation and distribution byrequiring that they be sold only in “in retail marijuana stores or behind thecounter in establishments where persons under twenty-one years of age are present.This unlawful content-based restriction on free speech forms the basisof this action.The statute reads in relevant part:HB 13-1317, specifically 12-43.4-202 -
Powers and duties of statelicensing authority on regulating marijuana
- Section (3)(c)(II):REQUIRING THAT MAGAZINES WHOSE PRIMARY FOCUS ISMARIJUANA OR MARIJUANA BUSINESSES ARE ONLY SOLDIN RETAIL MARIJUANA STORES OR BEHIND THE COUNTER IN ESTABLISHMENTS WHERE PERSONS UNDER TWENTY-ONE YEARS OF AGE ARE PRESENT.
II
. P
ARTIES
 
Plaintiffs High Times, The Daily Doobie and The Hemp Connoisseur are businesses involved in the publication and distribution of magazines, sold either locally or nationally, related to marijuana. Defendants enacted and are prepared to enforce Section 12.43.4-202(3)(2)(II) of House Bill 13-1317, which undulyrestricts Plaintiffs’ ability to distribute their publications in violation of the FirstAmendment. Plaintiffs request immediate relief from the content-based restrictions Defendants have placed upon them in violation of their Constitutional rights.2
 
III
. L
EGAL
A
RGUMENT
 P
LAINTIFFS
M
EET
T
HE
P
RELIMINARY
I
NJUNCTION
S
TANDARD IN A
F
IRST
A
MENDMENT
C
ASE
 
Plaintiffs in a First Amendment case must meet four conditions to obtain a preliminary injunction: Plaintiffs must show that (1) they will suffer irreparableharm unless the injunction issues; (2) there is a substantial likelihood thePlaintiffs ultimately will prevail on the merits; (3) the threatened injury to thePlaintiffs outweighs any harm the proposed injunction may cause the opposing party; and (4) the injunction would not be contrary to the public interest.
 American Civil Liberties Union v. Johnson
, 194 F.3d 1149, 1155 (10th Cir. 1999)(citations omitted).
A. Plaintiffs will suffer irreparable harm unless a preliminaryinjunction is issued
Plaintiffs distribute publications focused on the marijuana industry. Manyof these publications discuss and educate the public on the current economic and  political issues surrounding marijuana in the State of Colorado and elsewherethroughout the nation and world. Section 12.43.4-202(3)(2)(II) of H.B.13-1317 burdens and restricts the display and distribution of Plaintiffspublications,harming and severely limiting the distribution of Plaintiffs’ ideas and speech,and the public’s accessibility to this speech.Where First Amendment rights are burdened, there is a presumption of irreparable harm.
See Cmty. Communications v. City of Boulder 
, 660 F.2d 1370,1376 (10th Cir. 1981);
 Johnson
, 194 F.3d at 1163. The reason for the presumption is self-evident. As the Supreme Court stated, “[t]he loss of First3

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