Conant v. Walters
2002 WL 31415494, 309 F.3d 629 (2002)
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Rule of Law:
The federal government's policy of threatening to revoke a physician's DEA registration to prescribe controlled substances solely because the physician makes a professional recommendation for the medical use of marijuana violates the First Amendment by impermissibly chilling protected speech within the doctor-patient relationship.
Facts:
- In 1996, California passed a law decriminalizing the use of marijuana for limited medical purposes and immunizing physicians from state prosecution for recommending it.
- In response, the federal government, led by Barry McCaffrey of the Office of National Drug Control Policy, issued a policy stating that a physician's recommendation of marijuana was inconsistent with the 'public interest'.
- The federal policy declared that such a recommendation would lead to the revocation of the physician's Drug Enforcement Administration (DEA) registration, which is required to prescribe controlled substances.
- Federal agencies sent a 'Medical Leader Letter' to medical associations, warning that physicians who provided statements enabling patients to obtain marijuana in violation of federal law risked losing their DEA prescription authority.
- A group of physicians (Conant et al.) who treat seriously ill patients felt this policy prevented them from providing complete medical advice regarding potential treatments.
- The physicians feared that discussing or recommending medical marijuana, even when medically appropriate, would trigger a federal investigation and the loss of their DEA registration, thereby jeopardizing their careers.
Procedural Posture:
- A class of physicians and patients (Conant et al.) filed suit against federal officials (McCaffrey et al.) in the U.S. District Court for the Northern District of California, seeking to enjoin the government's policy.
- The district court granted a temporary restraining order and later issued a preliminary injunction against the government.
- The government did not appeal the preliminary injunction.
- The district court subsequently granted summary judgment in part to the plaintiffs and entered a permanent injunction.
- The federal government (appellant) appealed the district court's entry of the permanent injunction to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does the federal government's policy threatening to revoke a physician’s license or initiate an investigation for recommending medical marijuana violate the First Amendment rights of physicians and patients by chilling open communication?
Opinions:
Majority - Schroeder, Chief Judge
Yes, the federal government's policy violates the First Amendment. The policy unconstitutionally burdens core political and medical speech by targeting physicians based on the content and viewpoint of their communications with patients. The doctor-patient relationship requires open communication, which is protected by the First Amendment, and the government's policy strikes at this core interest. A physician's recommendation for medical marijuana does not, by itself, constitute aiding and abetting a crime, which requires specific intent to facilitate the commission of a crime. Merely anticipating that a patient might use the recommendation to obtain marijuana illegally is not sufficient to meet the criminal standard. The government's justification for the policy—that it prevents illegal conduct—is too attenuated from the speech it seeks to prohibit, and the policy lacks the 'narrow specificity' required to regulate speech in this context.
Concurring - Kozinski, Circuit Judge
Yes. While the majority's First Amendment analysis is correct, the injunction is further justified by the interests of patients and the State of California. Patients have a First Amendment right to receive crucial medical information, and the federal policy effectively cuts them off from the only reliable source of advice on this topic. Furthermore, the federal policy violates the anti-commandeering doctrine of the Tenth Amendment by effectively forcing California to keep medical marijuana illegal. The state's law relies on physicians to identify eligible patients, and by intimidating those physicians, the federal government incapacitates the state's chosen mechanism for implementing its own policy, thereby commandeering the state's regulatory functions.
Analysis:
This decision significantly strengthens First Amendment protections for speech within the doctor-patient relationship, particularly concerning controversial medical treatments. It establishes a clear distinction between protected medical speech (recommending a course of treatment) and unprotected criminal conduct (aiding and abetting), setting a high bar for the government to prosecute physicians. The ruling was crucial for the viability of state medical marijuana programs, as it shielded physicians from federal retaliation for performing their state-sanctioned role. The concurrence's invocation of the anti-commandeering doctrine also provides a powerful, federalism-based argument that can be used in future conflicts between state and federal law.
