The Media Go to Pot

How news outlets blew the medical-marijuana story

If you follow the news casually, you may have heard that the U.S. Supreme Court just said no on Monday to the use of marijuana for medicinal purposes.

If you're a more serious news aficionado, you read the Post-Dispatch, which reported -- in a front-page wire story headlined "High Court finds no medical exception for marijuana use" -- that the court has issued an 8-0 ruling disallowing a "medical necessity" defense by a California cooperative. You also learned, however, that the seemingly unanimous court didn't address the initiatives and laws of eight states that have legalized medical marijuana.

Now, if you're really a news junkie, you went to the New York Times for your information. There you found the same basic news story (it was the wire story used by the Post), but you could also have pored over the seven paragraphs at the end of the original 19-paragraph piece, which the Post just happened to chop off. (The cut wasn't purely for space. The Post did manage to "localize" the story with six paragraphs quoting three presumed experts, all of whom argued against medicinal marijuana.)

Missing from the Post and buried in the Times story is a not-so-small detail: The justices were anything but unanimous on the basic issues of medical marijuana. They merely agreed that the Oakland Cannabis Buyers' Cooperative couldn't escape a federal injunction by claiming a "medical necessity" defense, nothing more.

Even news junkies didn't get the real story. The "concurring" opinion issued by Justice John Paul Stevens blasted the decision written by Justice Clarence Thomas in no uncertain terms, reflecting a sharp division on the pot-related issues that the rest of us would find most interesting. The Times piece grossly understated this part of the story.

Stevens' nonexistent (in St. Louis) opinion was joined by Justices Ruth Bader Ginsburg and David Souter. (Justice Stephen Breyer sat out the case because his younger brother was a trial judge in the case.) Contrary to the reporting in the Post and elsewhere, this was basically another close court split.

The justices expressly do not agree that -- to borrow the Post's headline -- there is "no medical exception for marijuana use." The hot-button subject of drugs appears to divide them deeply, and they merely concurred on one narrow point in one case.

Mind you, this wasn't some challenge to California's Proposition 215, under which the voters overwhelmingly chose to legalize marijuana for medicinal purposes in 1996. This was shrapnel from the War Against Drugs not Enjoying Corporate Sponsorship.

The Clinton administration, in an act of stunning hypocrisy, had sought an injunction to close down the buyers' cooperative, which had been created in the wake of Proposition 215. The Justice Department of the nation's First Noninhaler wanted to shut down the cooperative for the sin of getting marijuana to the sick and dying.

The administration didn't bother trying to prosecute the co-op, knowing it could never win a jury trial in a city that had favored Prop 215 by a 3-to-1 margin. Even Oakland's police department and city government had supported the cooperative's creation.

It seems that people in California (along with the seven other states that have passed medicinal-marijuana initiatives) are not as willing as national politicians to turn their backs on people with glaucoma, AIDS, cancer and other diseases for which symptoms can be eased with marijuana. The drug can relieve pain and eye-socket pressure, stimulate appetite and stop vomiting. Those who follow Congress could use it.

Unable to prosecute, the federal government went the injunction route, seeking to shut down the cooperatives under Congress' Controlled Substances Act. The cooperative had argued that it should be exempted from federal law because it distributed marijuana of "medical necessity" to its recipients.

The justices were unanimous only in finding that "the Controlled Substance Act of cannot bear a medical necessity defense to distributions of marijuana," in Stevens' words. He added emphasis on the terms "distributions" and "manufacturing" three times in his opening paragraph.

Aside from that narrow point, Stevens' concurrence read like a blistering dissent. He took particular issue with Thomas' blanket statements -- misreported in the press as if he spoke for a unanimous court -- regarding the breadth of the decision.

"The Court takes two unwarranted and unfortunate excursions that prevent me from joining the opinion," Stevens wrote. "First the Court reaches beyond its holding, and beyond the facts of the case, by suggesting that the defense of necessity is unavailable for anyone under the Controlled Substances Act ...

"Second, the Court gratuitously casts doubt on 'whether necessity can ever be a defense to any federal statute that does not explicitly provide for it. By contrast, our precedent has expressed no doubt about the viability on the common-law defense, even in the context of federal criminal statutes that do not provide for it in so many words."

That couldn't be further from Thomas' blathering about marijuana.

"The very point of our holding is that there is no medical-necessity exception to the prohibitions at issue, even when the patient is 'seriously ill' and lacks alternative avenues for relief," Thomas wrote.

So much for compassionate conservatism. And so much for consistent conservatism, at least in the context of "states' rights." When federal laws are more politically correct (in the conservative view) than the states', a Big Brother federal government doesn't seem so evil after all to those on the right.

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