For most of this decade, Bob Newland has been the voice of marijuana law reform in South Dakota. The photographer and Black Hills resident has organized Hempfests, lobbied for reform legislation in the state capitol, relentlessly crisscrossed the state from the Black Hills to the Sioux Valley, and organized medical marijuana petition drives. He is the director of South Dakota NORML and founder of South Dakotans for Safe Access. As a marijuana reform activist, Newland has been unstoppable -- until now.
Newland was arrested earlier this year after being pulled over while driving for carrying slightly under four ounces of marijuana on what his lawyer described as a "mission of mercy." Originally charged with possession with intent to distribute, the veteran activist accepted a plea bargain and pleaded guilty to possession of under a half-pound of marijuana, an offense that carries a sentence of up to two years in the state penitentiary. Prosecutors agreed to make no sentencing recommendations.
On Monday, Newland appeared in court in Rapid City to learn his fate. Judge John Delaney didn't throw the book at him -- he was sentenced to one year in jail, with all but 45 days suspended -- but threw him a curveball instead. While under the court's supervision for the next year, Newland must not exercise his First Amendment right to advocate for marijuana law reform in South Dakota.
According to the Rapid City Journal, which had a reporter in the courtroom, Judge Delaney had two issues with Newland's marijuana reform advocacy. He was determined that Newland not appear to have gotten off lightly, and he did not want Newland's words to encourage young people to drink or use drugs.
"You are not going to take a position as a public figure who got a light sentence," Delaney warned Newland before talking about how juvenile courts are packed with kids who have drug problems. "Ninety-five percent of my chronic truants are using pot," Delaney said.
The no free speech probation condition raised ire and eyebrows not only in South Dakota, but across the land. Concerns are being expressed not only by drug reformers and civil libertarians, but also by legal scholars.
"Surrendering our First Amendment rights cannot be a condition of probation," said Allen Hopper, litigation director for the ACLU Drug Law Reform Project. "The Constitution clearly protects the right to advocate for political change without fear of criminal consequence. It is a shame that the court feels obligated to muzzle protected speech in a misguided effort to guard society from unfounded fears of open debate. Bob Newland is just the latest victim of a baseless drug policy that continues to clog our prisons and trample our rights."
"Courts impose conditions on probationers all the time, but this sort of condition is very unusual," said Chris Hedges, professor of law at the University of South Dakota. "People ought to be able to argue that the law should be changed, but now he can't do that. We always have to be concerned when someone's speech is infringed," she said.
"Bob is a classic example of an individual activist who was one of the lone activists in the whole state and who now knows smartly the pains of prohibition," said Allen St. Pierre, executive director of national NORML. "Those of us familiar with South Dakota laws and practices were not surprised with the jail time, but clamping down on First Amendment rights is something else. Judges put all kinds of restrictions on people on probation, but they don't usually say you can't engage in First Amendment activity."
It was precisely Newland's role as the face of marijuana reform in the state that earned the censorious probation, St. Pierre said. "Bob's pot bust was hardly an aberration, but the judge recognized he had the state's leading reefer rabble rouser in front of him. Had the judge had Joe Blow in front of him, I can't imagine that he would be saying you can't talk to anybody about this."
"It's appalling," said Bruce Mirken, communications director for the Marijuana Policy Project. "I can't imagine any reason why anyone should, as part of a criminal sentence, be barred from arguing that the law he was arrested on is wrong and should be changed. This is profoundly troubling. Whatever you think of the individual or the law, we do have something called the First Amendment, and it should apply to Mr. Newland as well as anyone else. I can't imagine how the people of South Dakota could be endangered by allowing Mr. Newland to advocate for what he believes in."
"It's really sad what happened to Bob on Monday," said Emmett Reistroffer, who has stepped up to take Newland's place as leader of South Dakotans for Safe Access, which currently has a signature gathering drive under way to get a medical marijuana initiative on the 2010 ballot. "I've never heard of that before in my life. I'm not an attorney, but the first thing I think is what basis does the judge have for depriving someone of their First Amendment rights?"
Newland himself was surprised at the probation condition, but uncertain as to whether it was worth fighting. In what may be his last words on the subject -- for the next year, anyway -- he told the Chronicle he feared the "negative effects" of challenging it. In other words, he doesn't want to get thrown in jail for even longer than he will already have to serve.
"This seems to me to be a quite unusual sentence provision, of a sort I have never encountered in all my years of activism and watching other people get sentenced for illegal substances. It certainly plays at the edges of suppression of speech of the sort we expect to see in totalitarian countries," he said. "Judge Delaney wanted to make a statement with the sentence, and he surely did. If I were inclined to fight the provision, the immediate negative effects on my life would almost certainly outweigh any gain I could accomplish. Therefore, I must say that I accept the judge's decision in the same light that I accept all the other provisions of the sentence. If this statement so far hasn't taken me over the boundaries of taking a 'public role' in reform advocacy, I'd probably better wait a year to add to it."
But Newland may not be silenced just yet. Those words were written Wednesday, before the ACLU Drug Law Reform Project had a chance to discuss the issue with him. That organization is definitely interested in pursuing the case. If Newland wants to move forward with challenging the no free speech provision, drug reform groups will stand with him, said St. Pierre and Mirken.
"Drug policy reform groups have an immediate interest in this case," said St. Pierre. "It sets a terrible precedent and is such an aberration to be told what political subjects you can talk about. The right to exercise political speech is the fulcrum this will turn on."
Newland may also gain some reassurance from law professor Hutton. Newland should be free to challenge the no free speech condition without fear of legal reprisal, said Hutton. "If he just filed something to challenge that, it cannot be used against him," she said.
Ironically, the judge's probation condition may prove to be a boon to the movement in South Dakota, said St. Pierre. "Just the fact that this has happened has caught the attention of people around the world," he said. "Painful as this is, Bob is now probably going to raise the profile of this debate higher than 10 years of wearing out shoe leather -- and without saying a word."