Writing for the Court, Chief Judge Mary Schroeder opined that the federal government's threats to sanction doctors who advised their patients about medical marijuana struck "at core First Amendment issues of doctors and patients."

"The government's policy in this case seeks to punish physicians on the basis of the content of their doctor-patient communications," she wrote.  "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 an 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 further added that a doctor's recommendation "does not itself constitute illegal conduct," and therefore "does not interfere with the federal government's ability to enforce its laws."

In his concurring opinion, Justice Alex Kozinski said the government's policy threatens to deny patients "information critical to their well-being."  Kozinski also noted that locally grown medical marijuana "does not have any direct or obvious effect on interstate commerce;" therefore, federal efforts to prohibit it exceed Congress' power under the Commerce Clause of the Constitution.

"[As] much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so," he wrote.

Plaintiffs in the case, a coalition of California physicians and patients, initially challenged the government's policy in 1997, shortly after federal officials threatened to sanction any doctors who complied with California's Proposition 215, the "Medical Use of Marijuana Act."  U.S. District Judge Fern Smith issued a preliminary injunction against the Justice Department in 1997.  That injunction was made permanent in 2000. 

For more information, please contact Donna Shea, NORML Foundation Legal Director, at (202) 483-8751.