Can Smoking Pot Be Considered a Form of Free Speech?

[Jim Lane]

5. It's both speech and conduct, and the latter can be regulated, like burning a draft card.

Vietnam-era First Amendment cases established that:
(1) Walking into a courthouse while wearing a jacket that says "Fuck the Draft" is protected speech, even if the local authorities get in a snit about it.
(2) Burning one's draft card to convey the same opposition has expressive elements but is also conduct that can be regulated, because the government has the power to issue draft cards to men and to require them to keep them.

This is where Citizens United went wrong. The left is wrong to attack corporate personhood, a concept that's essential to restrain many conceivable forms of government overreaching. (It's what would prevent President Cruz from issuing an executive order confiscating the assets of Democratic Underground LLC.) Our point should instead be that the government has the power to regulate the movement of large amounts of money even if, as in the prohibition of draft card burning (or pot smoking), there is some incidental burden on free speech.