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Judge rules Expo NM violated free speech rights

Copyright © 2019 Albuquerque Journal

A federal judge has sided with a medical cannabis grower in a suit claiming Expo New Mexico officials violated the firm’s First Amendment rights by issuing unreasonable restrictions on the items and images allowed in its State Fair booth.

In a 37-page order issued last week, Judge James Parker said fair officials provided a list of restrictions to Ultra Health Inc. that was subjective, arbitrary and overbroad, which ultimately led the company to pull out of the 2017 event.

If the company applies to participate in a future State Fair, the judge ruled, it can display images of cannabis it has cultivated as well as implements use to grow, manufacture and process it.

In a news release, Ultra Health CEO Duke Rodriguez called the ruling a “clear victory for cannabis advocates in New Mexico and across the nation.”

“Judge Parker’s recognition that medical cannabis producers’ free speech should be protected is a first-of-its-kind ruling defending the right to fully educate and inform the public on the benefits of cannabis,” he wrote.

The company had a live cannabis plant on display at the 2016 State Fair, and on the first day of the fair, State Police officers told employees to pack up and leave the premises. Ultra Health wrote in a later court filing that it was not, at this time, challenging the fair’s prohibition on actual cannabis plants or products.

As it applied to participate in the 2017 fair, the company was told it could not bring cannabis or any paraphernalia that could be used to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body any type of cannabis or other controlled substance” or images of any of those items.

The company did not plan to sell anything at the fair and intended to use the booth only as an educational and informational display. After receiving the email from Raina Bingham, the fair’s concessions director, it opted not to participate.

“By the plain language of Ms. Bingham’s statement,” the company wrote in its lawsuit, “Ultra Health would be precluded from bringing a shovel to its informational booth, and would also be precluded from bringing a picture of a shovel, since a shovel may be used to ‘cultivate’ or ‘plant’ a cannabis plant.”

While the fair aims to promote a family friendly event, the judge found that employees had “unfettered discretion to conclude what constitutes ‘family friendly’ by relying almost entirely on their subjective sensibilities and respective personal opinions.”

As a result, the event inconsistently applied its own policies, issuing exceptions for some applicants while using the same criteria to restrict others.

“For example, Ms. Bingham approved Cutco Cutlery’s 2017 State Fair applications despite an explicit prohibition on knives,” Parker wrote. “Ms. Bingham testified that even with a prohibition on firearms, the State Fair would allow a hunting and fishing store to display photographs of its merchandise, including shotguns sold in its store.”

Along with Bingham, Larry Kennedy, chairman of the New Mexico State Fair Commission and Dan Mourning, general manager of Expo New Mexico were named as defendants. Their attorneys and an Expo New Mexico spokesman could not be reached for comment Monday.

Parker wrote that the State Fair is considered a “limited public forum,” which means it can exercise discretion in determining which vendor applications comply with its purposes.

“However, they must do so reasonably,” he wrote.

The restrictions, he said, were not reasonable and violated Ultra Health’s First Amendment right to free speech.

He issued a separate order in favor of the plaintiff and said the company will be awarded attorney fees and costs.

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