Judge defends sentence restricting Bob Newland’s free speech on medical marijuana

You’ll recall the sentence handed down by South Dakota judge Robert Delaney in the cultivation case of South Dakota NORML’s Bob Newland. The judge forbade Newland from publicly advocating for the passage of a medical marijuana initiative, as well as random searches and mandatory urine screens.

(Rapid City Journal) “I have no concern whatsoever about whether medical marijuana is legalized,” Delaney said during an interview with the Journal in his office. “The important thing was to have a sentence crafted to impose a penalty on Mr. Newland that was significant to him.”

The advocacy ban was an infringement on Newland’s First Amendment rights. Delaney doesn’t deny that. But neither does he consider it more onerous or any less appropriate than many other infringements imposed as part of felony sentences.

The random searches Newland faces in the next year would be violations of his constitutional rights, but for the felony plea. Felons can face otherwise unconstitutional firearms restrictions and the right to associate with certain people or go to certain establishments, Delaney said.

“We restrict speech as well in a lot of protection orders, or in divorces, where in some cases the parties’ freedom to speak to one another may be limited,” he said.

And given the fact that the maximum penalty for Class 6 felony marijuana possession was two years in prison and a $4,000 fine, Newland’s sentence could be considered light by others who face similar charges, Delaney said. He was particularly concerned about younger minority defendants who might get a longer jail term for the same crime.

“I’m sitting there faced with a gentleman who is older, well known, who is thought by many to be considerably more well off than he is, and he is seeking a sentence that is going to be considerably more lenient that what they (minority defendants) might receive,” Delaney said. “So my thought was that I have to take something from him that is as valuable or maybe even more valuable than his freedom.”

But Judge Delaney, your order still allows Newland to meet privately with organizers of the South Dakota medical marijuana petition, so he’s still got the advocacy that is so valuable to him.  If his gigs are like mine, it probably costs him money to get up and publicly advocate for this.  The reason we limit felons from firearms, criminal associations, entry into certain establishments, or exes speaking to each other in a divorce proceeding is to either protect society from the felon or protect the felon/ex from society/each other.  Free speech isn’t like Bob Newland’s X-Box that you take away as punishment because you grounded him. And in restricting Bob’s advocacy, you’re infringing on all the people Bob would educate and inform about medical marijuana, not just Bob.

Suppose Bob was a huge Minnesota Vikings fan* and that was “more valuable than his freedom” to him.  Are you going to order him to never wear an Adrian Peterson jersey and stay away from sports bars?  If so, at least that would be punishing Bob only.  But when you punish a guy who was growing marijuana for medical purposes by taking away his right to advocate for the legalization of growing marijuana for medical purposes, you can’t tell us that you “have no concern whatsoever about whether medical marijuana is legalized”.

And if all of this is brought about by your own guilt about sentencing younger darker people than Bob to prison for gardening, maybe you ought to let Bob speak so you don’t have to sentence so many of them.  Or maybe you should be equally creative with your younger darker defendants’ sentences.  Or maybe just support legalizing marijuana so you can find creative sentences for rapists, murderers, and arsonists.

* Actually, being a Minnesota Vikings fan is probably punishment enough…