This article originally ran in the February 2018 issue; click here to see the digital edition.
CYBERSPACE—In the last few years several states, starting with Colorado, have made the decision to legalize recreational marijuana in some form. More than a dozen others have legalized medical marijuana already, and nearly every state has taken steps to decriminalize or reduce the priority of prosecuting marijuana use except in cases that involve significant illegal quantities, involvement with minors or other serious infractions of the broader legal framework. All of that has led to a burgeoning cannabis industry in the United States that is generating billions of dollars in profits and bringing in significant tax revenue for the states that allow it … and now it may be about to change due to a renewed threat of federal prosecutions.
It’s no secret that there has been a crossover of talented marketing professionals and entrepreneurs from porn to cannabis. Many have taken what they learned online and offline slinging hardcore sex for the masses from the blue side of vice to the green side with plenty of success. So much in fact that this time last year AVN hosted a standing-room crowd for a panel discussion at Internext in Las Vegas to specifically discuss the crossover and to help entrepreneurs learn more about the many paths to making a profit by straddling the line between both verticals.
This article was intended to continue that discussion with several well-known and often outspoken people who are currently working in cannabis and porn, until a report became public that United States Attorney General Jeff Sessions is now rolling back the Obama era guidelines against federal prosecution of marijuana activities that are legal within the boundaries of each governing state.
Sessions announced the major change in policy on January 4 with a one-page memo that should be read by anyone interested in marketing marijuana. The memo states: “Given the Department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.”
During the Obama era, the feds never legalized any form of marijuana. It remains completely illegal according to statutory law of the federal government. However, in 2013, Obama’s Justice Department made it clear that it had no intention of prosecuting anyone who was in compliance with the local and state laws of their jurisdiction. A sort of “don’t ask, don’t tell” compromise that allowed marijuana business to flourish without taking on the political fight of trying to make it legal on the federal level.
In August of 2016 the Drug Enforcement Administration rejected a petition to remove marijuana from its place on the Schedule I list of most dangerous drugs. Presently, cannabis continues to be listed alongside heroin and other “heavy” drugs with the steepest federal penalties as a narcotic that has no beneficial properties … even as a growing number of medical professionals continue to laud the use of marijuana as everything from an anti-inflammatory pain medication, to an anti-seizure med or an appetite enhancement tool for people suffering through chemotherapy or eating disorders.
The result has been an arsenal of prosecutorial tools at the ready, including jail sentences, fines, seizure of assets and anything else the government might use to go after a global heroin cartel … shelved and kept dormant by the simple promise of the former Attorney General not to use any of that in instances where the cannabis was being used or sold in compliance with local laws. In Obama’s own words, the government mindset was simply that “we have bigger fish to fry.”
This new memo from the current Attorney General undoes all of that. It does not require prosecutions, but it does instruct federal prosecutors to use their own discretion. According to a report on Buzzfeed, “Senior Justice Department officials stressed that they wanted U.S. attorneys, who are assigned to districts around the country, to use their discretion to determine whether someone should face federal charges for a marijuana offense.”
Coupling this empowerment of federal prosecutorial discretion with the numerous examples and reports of many grossly incompetent appointees being installed by the current administration and you suddenly have the real threat of legally incompetent minds wielding a horrific amount of criminal power.
Along with these developments on the cannabis legal landscape are parallel threats of prosecution on the porn side of the equation as well. During Sessions’ confirmation hearings in Congress he went so far as to say of the Justice Department’s long shuttered Obscenity Prosecution Task Force: “That unit has been disbanded. I’m not sure I knew that, but it was a part of the Department of Justice for a long time and I would consider [reviving it].”
That means anyone operating in porn and cannabis is simultaneously wearing a target on their back and chest as far as the current Attorney General is concerned. Given that fact it should not be surprising that many who were contacted to provide quotes for this article were only willing to do so off the record. None were willing to be named in the article, and two who had previously given quotes later contacted me to rescind them prior to publication when they saw this memo published.
When asked if they would be willing to take part in a marijuana panel at an upcoming trade show, similar to the one AVN hosted at Internext in 2017, each gave a reply that amounted to saying “not right now, and definitely not until things cool off again.”
Political blowback is also already underway. In Colorado, for example, the Republican U.S. senator from that state, Cory Gardner, pledged that he would oppose any move by Sessions and his own Republican Party to curtail state marijuana legalization. “This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation. With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states,” Gardner posted on his Twitter account. “I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”
More importantly, public support for legalization continues to gain momentum with very widespread support across all party lines. An October 25 Gallup Poll found that 64 percent of Americans favor the legalization of marijuana.
That makes the midterm elections of 2018 even more important, and even more interesting. On November 6 of this year, all 435 seats in the United States House of Representatives and 33 of the 100 seats in the United States Senate will be contested. Add to that 39 state and territorial governorships along with many other state and local elections up for grabs.
At this moment the Republican Party controls 52 of the 100 seats in Congress. Orrin Hatch of Utah has announced he will retire and it is largely expected by experts that Trump enemy Mitt Romney is the favorite to win that seat. And in California, Republican incumbents Ed Royce and Darrell Issa announced they would not be running to hold their seats in the U.S. House of Representatives. Just a few more changing hands would eviscerate Republican legislative power. It would take only 24 seat changes in the House of Representatives to swing that body away from Republican control as well.
AG Sessions and the rest of the Republican party may live to regret their decision to overlook public consent by the majority of Americans on pot and porn issues ranging from marijuana legalization to net neutrality if on Election Day the Democrats regain control of Congress and a relaxing bong-hit is no longer available anywhere nearby.
