Thought Crimes and Synthetic Drugs – Defending Cannabinoid

Receptor Agonists on First Amendment Grounds

A Quick & Dirty Lesson in

Neuroscience

Synapse – the area across which neurotransmitters travel

“A neuron regulates the production of neurotransmitters, making more or less of them as needed.”

Gahlinger, 137.

“All thoughts, sensations and stimulations of the body are brought about by nerve cells, called neurons.”

Paul Gahlinger, M.D., Ph.D., Illegal Drugs: A Complete Guide to their History, Chemistry, Use and Abuse, 133 (Plume 2004).

“Almost every neuron is constantly changing its function by adapting to bodily demands, sensations and environmental influences.”

Gahlinger, 137

1992

“In an effort to understand which neurotransmitter systems create THC’s effects, investigators eventually identified two receptors that respond specifically to cannabinoids.”

Mitch Earleywine, Understanding Marijuana: A New Look at the Scientific Evidence, 141 (2002 Oxford

University Press).

“…which led to the discovery of endogenous cannabinoids.”

Gahlinger, 332.

The Endocannabinoid System

This system now appears as a relevant modulator of physiological functions not

only in the central nervous

system but also in the autonomic

nervous system, the endocrine

network, the immune

system, the gastrointestinal tract, the reproductive system and in microcirculati

on.http://alcalc.oxfordjournals.org/content/40/1/2.full

What does all this have to do with the

law????

Cannabimimetic Agents: Known colloquially as

synthetic marijuana, herbal incense, K2 or Spice

Cannabimimetic Agents:

Known legally as……

So, what is an agonist?????

CB1 Receptors: Found primarily in the nervous system.

CB2 Receptors: Found primarily in the immune system.

Remember our Endocannabinoid System with its two distinct receptors?

“…cannabinoids alter the communication between nerve cells”

Earlywine, 137.

“Our whole constitutional heritage rebels at the thought of giving government the power to control

men's minds.” Stanley v. Georgia, 394 U.S. 557, 565 (1969)

“FREEDOM OF SPEECH PRESUPPOSES A WILLING SPEAKER. BUT WHERE A SPEAKER EXISTS… THE PROTECTION AFFORDED IS TO THE COMMUNICATION, TO ITS SOURCE AND TO ITS RECIPIENTS BOTH.”

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc, 425 U.S. 748, 756 (1976)

“Our review of the Supreme Court's decisions confirms that the First Amendment does not merely prohibit the government from enacting laws that censor information, but additionally encompasses the positive right of public access to information and ideas.”

Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242 (C.A.3 (N.J.), 1992)

“This lurking right to receive speech (in essence, the right to listen), however, is not sufficient to trigger First Amendment scrutiny… First Amendment scrutiny applies only if there is government action that directly or at least incidentally affects a protected expressive activity… Because recreational dancing of the type at issue in this case is not expressive conduct protected by the First Amendment, the factual dispute about the nature of Willis's dancing is not material to her First Amendment claim.”

Willis v. Town of Marshall, N.C., 426 F.3d 251 (Fed. 4th Cir., 2005)

Limitation on Stanley

“To be sure, it is now well established that the Constitution protects the right to receive information and ideas from a willing speaker” (internal quotations omitted)

Stephens v. County of Albemarle, Va, 524 F.3d 485 (4th Cir., 2008)

“Protection of the First Amendment, however, does not turn on the social worth of ideas.” (internal citations omitted)

Ayers v. Western Line Consol. School Dist., 555 F.2d 1309, 1319 (C.A.5 (Miss.), 1977)

“:It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged ....”Muir v. Alabama Educational Television Com'n, 688 F.2d 1033, 1055

(C.A.5 (Ala.), 1982)Dissent of Circuit Judge Johnson

The Sixth

Circuit

First Amendment protection of the right to know has frequently been recognized in the past.

Minarcini v. Strongsville City School Dist., 541 F.2d 577, 583 (C.A.6 (Ohio), 1976)

TheSeventh

Circuit

“Since the facet of the First Amendment protection under review is the right to receive information it is appropriate to consider the effect which a restrictive regulation…may have on the flow of information to the persons whose right is asserted” (internal citations omitted).

Aikens v. Jenkins, 534 F.2d 751, 754 (C.A.7 (Ind.), 1976)

763

The Eighth Circuit

“The First Amendment is concerned with the freedom of thought and expression of the speaker or writer, not the conditions under which the auditor or listener receives the message. One need not, as a condition precedent to his right of free speech under the First Amendment, secure permission of his auditor.”

National Labor Relations Bd. V. Montgomery Ward & Co., 157 F.2d 486, 499 (8th Circuit, 1946)

The Ninth Circuit

“It is of no significance that the conduct in question may be condemned as immoral by a majority in our society.”

Dissent of Circuit Judge NorrisMiller v. Rumsfeld, 647 F.2d 80, 86 (C.A.9, 1981)

“The Supreme Court has made it clear that mere entertainment is protected speech.” (internal citation and quotations omitted)

Footnote 3Chase v. Davelaar, 645 F.2d 735 (C.A.9 (Wash.), 1981)

The Tenth Circuit

“The possession of contraband drugs does not implicate any aspect of personal identity which, under prevailing precedent, is entitled to constitutional protection. (internal citations omitted) Validly enacted drug laws put citizens on notice that this realm is not a private one.”

Mangels v. Pena, 789 F.2d 836, 839 (C.A.10 (Colo.), 1986)

Limitation on Stanley

The Eleventh Circuit

“…when the conduct being regulated is…for purposes of entertainment, it is impossible to separate “speech" from "conduct" in order to determine the true subject of the regulation.”

Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 947 (C.A.11 (Fla.), 1982)

Recap:

• Neurons have receptors that bind with specific neurotransmitters• Cannabinoids have their own receptors, CB1 and CB2• CB1 receptors are located primarily in the nervous system, including in the

cerebral cortex and hippocampus.• The Cerebral Cortex is where conscious thought occurs.• The hippocampus is where learning and memory occur.• Cannabinoids alter the physiology of neurons, thereby altering thought• By criminalzing CB1 agonists, you are criminalizing something based on

how it affects the brain, including how it affects thoughts.• This creates a thought crime.• Freedom of thought is encompassed within the free speech rights granted

by the First Amendment• Limitations on free thought that are content based are subject to strict

scrutiny.