"Privacy and the Marijuana Laws" was published in the Journal of Psychedelic Drugs 2, no. I (Fall 1968): 105-47. Copyright © 1968 by David E. Smith, M.D. Revised by the author for this volume and reprinted by permission of the publisher and the author.
The Contemporary Setting
The criminal sanctions governing use and possession of marijuana are considered in this article in light of the concept of personal privacy as a constitutional guarantee and as a general value in American life. Although the wisdom and constitutionality of the marijuana laws are fairly recent themes with relatively little legal literature treating the subject,1 the general issue of law and drugs has been hotly disputed over the years in many contexts? Not only has the legislative wisdom behind the marijuana laws been recently questioned in many quarters, but the characterization of the problem as a crime, sin, disease, vice, recreation or merely another form of social behavior in a pluralistic society has come into dispute as a special case of drug usage .2
Tough questions are raised in considering the philosophical, sociological, and medical aspects of marijuana use; yet even as the debate rages, there are very real costs to society in maintaining the legal strictures against use and possession of marijuana. Thousands of people, many of them quite young and for the first time, experience the criminal process involving arrest, prosecution, conviction and possible sentences of great duration with the attendant difficulties of reentering society.4 Limited law enforcement resources that might well be used elsewhere are allocated to handle this particular problem. Methods of detection are employed that, because of the lack of a complainant or "victim," approach the gray areas of the law of arrest and search and seizure.5 Subcultures arise that go to great len s to continue covert usage in spite of heavy penalties.° This arti e will consider the claim that a valuable and fundamental right—the right to personal privacy—has been abridged by the existence of such laws.
Some of these costs to society mentioned above are peculiar to the marijuana laws; some apply to any law where there is no victim, such as the laws prohibiting gambling, prostitution, or homosexuality; and some such costs are necessary when any law is promulgated and enforced. To assure ourselves that the benefits realized by the marijuana laws are such that they outweigh these costs, serious reconsideration of the legal proscriptions on marijuana use and possession is in order.
In considering the value of privacy as an objection to the criminal regulation of marijuana use and possession, use will be made of the California law prohibiting use and possession of the drug as an example. Not only is this law representative of those in effect across the country, but California is involved in a serious reconsideration of the marijuana laws through legislative and judicial channels. There are consequently enough statistics, legislative materials, and cases involving marijuana to make such a particularized examination useful as illustrative of the general problem.
Under California law, "Every person who possesses any marijuana, except as otherwise provided by law, shall be punished in the county jail for not more than one year, or in the state prison for not less than one year nor more than 10 years." 7 The statute goes on to provide for a 2- to 20-year sentence for a second offense, and 5 years to life imprisonment for a third offense.
The severity of punishment for possession of marijuana may be compared with the same penalty assessed for possession of LSD (lysergic acid diethylamide).8 If the drug possessed is one of the "hard" narcotics such as heroin, morphine, or cocaine, which are recognized as physically addictive where marijuana is not,9 the punishment is quite similar to the penalties for marijuana possession. The statute assesses penalties of 2 to 10 years for a first conviction, 5 to 20 years for a second conviction, and 15 years to life imprisonment for a third conviction.10
As a further contrast, it is noted that there is no law against the mere private possession of alcoholic beverages in spite of the well-known dangers of this intoxicant." Criminal penalties are imposed only when alcohol is used in some abusive manner, such as when a person is intoxicated in public" or operates a motor vehicle while under the influence of alcohol."
The legislative history of marijuana regulation in California shows a trend of increasingly severe penalties for its possession. In 1907 marijuana was first regulated by the California Legislature when the drug was included within the class of substances which had to be labeled as "poison." 14 Possession of marijuana was lawful until 1915, when possession, unless prescribed by a physician, was prohibited." In 1929 the legislature passed the State Narcotics Act which regulated the possession of marijuana by including it among habit forming, narcotic and other dangerous drugs and substances." Thus marijuana was at this time first included among the "hard" narcotics such as heroin, morphine, and cocaine.
In 1939 the State Narcotics Act was incorporated into the California Health and Safety Code" along with the same illicit narcotics grouped together in 1929.18 Marijuana possession and the planting provisions were placed in section 11530 of that code, a separate section in 1959.18 Mandatory felony sentences were imposed as part of a scheme by which longer sentences for possession of all narcotics were required in 1961.0 Prior to 1961 the punishment for marijuana possession was in the alternative so that the trial judge at his discretion could make the offense either a misdemeanor or a felony depending on the length of the sentence imposed and the institution in which it was to be served.24 An amendment in 1968 restored alternative sentencing.22
Clearly the development of legal sanctions against possession of marijuana has been one of increasing severity. As a felony possession falls within a class of crimes that our society regards with special opprobium.23 Yet as more offenders are arrested each year and the number of users continue to multiply, the question of the propriety and constitutionality of the law should be more sharply focused. While only a few cases have raised constitutional objections to marijuana possession statutes in the past, their number is increasing.24 Without legislative action to modify substantially or abolish the possession statutes, such constitutional objections will be raised with greater frequency and, perhaps, with no greater success.
Constitutional Objections to Marijuana Possession Statutes
Although this article is concerned with the notion of privacy as an objection to marijuana possession statutes, it should be emphasized that other constitutional questions can be raised as well. The right to free expression of religious beliefs as guaranteed by the First Amendment might be used to carve out an exception to the statute. This was done in People v. Woody,25 where a California statute prohibiting the possession of peyote was under consideration.26 The right of religious expression would be applicable to the marijuana possession statute if a user could show that his use of marijuana was essential to his religious beliefs or practices and if he could show his sincerity in those beliefs.27 In two recent federal cases, Leary vs. United States28 and United States vs. Kuch,29 defendants failed to do this. If the free exercise clause were applied to the use of marijuana, the user could not be successfully prosecuted without the state's demonstrating a compelling interest, narrowly drawn, why that personal right should be infringed upon.
It might also be argued that a marijuana possession statute violates the constitutional guarantee against cruel and unusual punishment found in the Eighth Amendment. The statute might be invalidated if the possession of marijuana is conduct that the court would consider not within the legislative power to punish as a felony. This of course would depend upon the legislative justifications for making possession a criminal act, since it is the discrepancy between the conduct and the punishment that makes the punishment cruel and unusual under the United States Supreme Court ruling of Robinson vs. California." By making possession of marijuana a felony, thus equating such arguably harmless conduct with the whole spectrum of common law felonies such as rape, arson, larceny and murder, the statute might be construed as imposing cruel and unusual punishment. A California court has taken judicial notice that respected medical authorities are of the opinion that marijuana is harmless, but a recent Colorado case flatly rejected the defense in light of the legislative decision that some harm existed."31
There is also an argument that the classification of marijuana as a narcotic and the prohibition of possession violate the equal protection clause of the Fourteenth Amendment. In order to satisfy the equal protection guarantee, a law, in pursuing its legitimate goals, must not invidiously discriminate against any particular group. Making possession of marijuana illegal, while excluding other euphorics such as alcohol, might be considered a violation of the guarantee of equal protection by such a test. This argument was unsuccessfully tried in the California case of People vs. Aguiar.32 It would be necessary, therefore, to bring marijuana within a "suspect classification," which includes personal rights protected by the constitution. Such suspect classifications are subject to closer judicial scrutiny, where the courts will engage in weighing fact-finding studies, unlike the usual type of equal protection case where any rational distinction is accepted.33
Privacy as a Constitutional Concept
GRISWOLD V. CONNECTICUT
Privacy would seem to be a commonly accepted value in America." Yet, as such a vague concept, privacy is only useful when the circumstances which give rise to expectations of privacy are considered. People have expectations of associational privacy when various types of personal relationships are formed.35 Such relationships may range from marriage to friendships to business partnerships. Expectations of confidence and trust are present in varying degrees in many such interpersonal relationships and are often enforced by law as fiduciary obligations and recognized as constitutional rights.36
Certain types of what can be called situational privacy are also accepted and protected.57 Situations or areas regarded as private might include any place where diverse sorts of privacy can be reasonably expected such as one's home, a car, a telephone booth, or a city street, depending upon the particular activity." Invasions of this kind of privacy are limited by the Fourth Amendment of the Constitution to "reasonable" invasions where there is "probable cause."
To be distinguished from a relationship with another person or a place where privacy is reasonably expected is what can be called personal privacy. This type of privacy would include conduct that in and of itself is regarded as related solely to the individual and his "life style." It is essentially one's right to personal autonomy." As a matter of social practice where there is any intrusion into this realm of personal privacy, an explanation or justification is demanded and usually the consent of the individual is required.
The fact that the conduct is private does not necessarily mean that personal privacy is involved since almost any activity can be conducted in private. It is the personal aspect that is most significant here." What one eats, wears, or thinks is generally considered no one else's decision. These and other parts of one's personal life are regarded as relatively immune from outside interference. Any regulatory attempt by outsiders raises the specter of Orwellian fantasy.
Although privacy may be an important and fundamental aspect of life in any society, it is not specifically enumerated as such in the Constitution of the United States. This presents a serious problem because it is through the Constitution that our most basic personal rights are protected. Until the case of Griswold vs. Connecticut41 privacy as a substantive constitutional right, immune from legal invasion, was unknown. Certain attempts had been made in the past to articulate the concept in other legal contexts, however. The right of privacy as the "right to be let alone" was eloquently sketched by Justice Brandeis in 1928 in his oft-quoted dissent in Olmstead v. United States,42 a wire tapping case.
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.
Although while Justice Brandeis was specifically concerned in Olmstead with the guarantees of the Fourth Amendment against unreasonable searches and seizures ( what was called situational privacy), as a general theme it rings true. A similar "right to be let alone" has been developed in the law of torts under the rubric of privacy as a basis for civil liability; this is also due to the persuasive writing of Justice Brandeis prior to his appointment to the Supreme Court.43 In spite of the novelty of privacy as a substantive constitutional right, it is clear that as a general concept privacy is not foreign to the law.
As noted, the leading case supporting the existence of a substantive right of privacy is Griswold vs. Connecticut. Consequently, a thorough understanding of the Griswold decision is necessary before considering what use might be made of its teachings in dealing with a marijuana possession statute. The Court in Griswold overturned the Connecticut anti-birth control statute.44 This "uncommonly silly law" as it was called by Justice Stewart,45 was an antiquated, rarely invoked statute making it a criminal offense to use birth control devices for the purpose of preventing conception. It was no surprise that the law was held unconstitutional but the importance of the case lies in the way in which the Court arrived at this decision.
Privacy was the basis for the Court's decision and, as a substantive right, privacy was raised as a defense to any application of the Connecticut statute. As mentioned earlier, this right of privacy is not the procedural or "situational" right of privacy that protects an individual from unreasonable searches and seizures employed in enforcing constitutionally valid statutes.4° The right of privacy recognized in Griswold must also be distinguished from that right of privacy found in the law of torts.47 In Griswold the Court held that the statute infringed on the zone of privacy that a married couple possessed. Within this zone the couple was free to decide whether or not they would use contraceptive devices;48 this was characterized above as "associational privacy" of a special kind, marital privacy."
Support for this right of privacy was found by looking to the "specific guarantees in the Bill of Rights having penumbras, formed by emanations from those guarantees that help give them life and substance." 5° The court found that the right of privacy protected in Griswold was created by several fundamental constitutional guarantees; it based its decision on five of these guarantees contained in the Bill of Rights:
Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one. . . . The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." 51
The Court reinforced its argument that penumbral zones of privacy existed by showing that past decisions had found fundamental constitutional rights not specifically mentioned in the Constitution. Rights such as freedom of inquiry, freedom of thought, and freedom to teach were considered essential because "without those peripheral rights the specific rights would be less secure." 52
Although the language of Griswold is broad, the holding itself is narrow; only marital privacy is protected. The case is significant in that six Supreme Court Justices found a right of privacy within the Constitution.53 Of greater importance than the holding is the reasoning of the court that the peripheral rights do exist and are essential to the specific rights. Nevertheless, privacy as a substantive constitutional right is still in its embryonic stages.
It is possible that Griswold will be treated as an aberration limited by a plurality opinion and the special facts that are said to reduce its significance as a source of newer kinds of personal privacy.54 But the converse would appear to be true. The case is cited for a variety of purposes and has become a judicial warrant for many innovations in constitutional law.55 But this in itself may prove to discredit the Griswold decision since ready use of the decision for a multitude of purposes may dilute its persuasive value. Consequently, a tighter definition of privacy or the "peripheral right" to be protected would be in order whenever any right differing appreciably from marital or associational privacy is in issue. In approaching the concept to be considered in the context of marijuana use and possession—personal privacy—it is instructive to see how other courts have treated Griswold and the right to privacy.
If the use and possession of marijuana is to be given constitutional protection by reference to a right of personal privacy, two approaches must be considered. One is the frank advocacy of a general right of personal privacy with respect to inherently private and personal conduct in spite of the difficulties involved in making the step from the "sacred precincts of marital bedrooms"" to the residence of an individual who purposefully induces a mild hallucinatory condition through the use of marijuana. Just as the individual may express himself graphically,57 verbally,58 and physically59 in certain constitutionally protected ways, it can be argued that there is a zone of privacy in which one can express himself mentally or inwardly by using marijuana. This may be for spiritual purposes, as was the case in People vs. Woody with peyote," or for the mere enjoyment of the experience, as might also be the case.
Certainly the actual use of marijuana involves no one other than the user. There is no doubt, however, that the user is affected. In the words of a leading authority on the subject: "Marijuana is taken for euphoria, reduction of fatigue, and relief of tension. . . . Small to moderate doses also increase appetite, distort the time sense, increase self-confidence and, like alcohol, can relax some inhibitions." 61 Philosopher-theologian Alan Watts would classify the characteristic effects of marijuana as giving the user
1. a concentration in the present which disregards future considerations and anxieties,
2. heightened awareness of polarity in interdependent relationships,
3. heightened awareness of relativity between man and his total environment, and
4. an awareness of eternal energy.62
In short, marijuana is used for the experience and insight it provides the user, be it characterized as religious, philosophical, emotional, or self-gratifying. As an experience dealing solely with the mind, it is the most personal and private sort of experience possible. Based on this it could be argued that possession of marijuana, as a necessary incident to its use, could be brought within a zone of personal privacy using Griswold as authority.
Although this approach may have both logic and candor to,,recommend it, other ways of raising the issue of personal privacy may be preferred for reasons of strategy and constitutional theory. Except for marital privacy as laid down by Griswold, the courts generally have not accepted the right of privacy as an independent substantive right63 Not only is the concept of privacy so overwhelming and ill-defined that it may threaten to sweep many forms of human endeavor within it, but its absence from the constitution as a specific guarantee makes its acceptance a very sensitive judicial judgment. Where a court is given the choice, it would appear obvious that it will opt for an historically protected and more specifically articulated right such as freedom of expression rather than the recently enunciated right of privacy. Privacy would then be an alternative holding or a right which is tucked into one of the more specific and established rights.
In 1969, a decision of the United States Supreme Court has provided a perfect illustration of this kind of judicial approach, linking together the First Amendment and personal privacy. In Stanley vs. Georgia the court held that mere possession of obscene matter cannot constitutionally be made a crime and reversed the conviction of Mr. Stanley, who was arrested in his own home in possession of obscene films." In an opinion by Mr. Justice Thurgood Marshall the court reasoned that the right of free expression necessarily protects the right to receive information and ideas regardless of their social worth. Indeed, the line between useful ideas and mere entertainment was found to be too elusive a distinction to make. An "added dimension" was the fact that the defendant was arrested for possession of obscene film in his own home. For the proposition that there is a fundamental right against unwanted intrusions into one's privacy, the court found it appropriate to cite the famous Brandeis dissent in Olmstead vs. United States and Griswold vs. Connecticut.65 In short, the court said the defendant "is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home." 66 Justice Marshall further asserted that "our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." 67
What is quite obvious is that those laws restricting the possession of marijuana for personal use do control an individual's options for self-expression. New sources of knowledge and experience, even if "mere entertainment," are denied the individual who chooses not to violate the law. The state, in effect, limits a potentially vast source of information that may be revealed or elicited through the use of marijuana.
The sort of conduct referred to in Stanley must be distinguished from so-called mixed speech and conduct, where subsequent to the formulation of an idea, conduct is essential to communicate that idea.68 Mere possession of the film would be conduct antecedent to the speech, not subsequent to it. In this sense, the conduct in issue in Stanley relates only to control over the options available for later public exposure or attention. The decision to divulge or disseminate the information exposes such an act to legal sanctions. Until such divulgence is made, the possessor of obscene photographs, like the possessor of seditious, homicidal, or defamatory thoughts, is protected. As part of the process of free expression, the rights, antecedent to speech might fall within what Professor Emerson would call "freedom of belief" or might better be phrased as a "right of self-expression" when some conduct is necessary in gathering or facilitating the information.69
The specific guarantees of free speech and expression would lose much of their substance and impact if control of the preconditions to speech and expression were such that only harmless or proper alternatives were allowed to be considered. Any attempt to control an individual's beliefs or self-expression "invades the innermost privacy of the individual and cuts off the right of expression at its source." 70 Speaking of the function of the First Amendment Judge Learned Hand has said, "it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection." 71 This would apply with even greater strength to the methods of formulating expression as well.
Finot vs. Pasadena City Board of Education is a case that finds protected personal rights in the periphery of the First Amendment with respect to an individual's physical appearance.72 In Finot the California Court of Appeal held that a high school teacher could wear a beard without losing his job using Griswold as authority. This right to wear a beard was brought within the periphery of the First Amendment's right of free speech as "expression" through non-verbal conduct. The court in Finot emphasized this point saying:
It seems to us that the wearing of a beard is a form of expression of an individual's personality and that such a right of expression, although probably not within the literal scope of the First Amendment itself, is as much entitled to its peripheral protection as the personal rights established . . . with respect to the right of parents to educate their children as they see fit.73
It is not clear from the opinion on which side of the First Amendment the expression lies. If the wearing of a beard, although a "symbol" to some, is not intended to communicate anything, it too might be considered conduct antecedent to expression thereby falling within the realms of "self-expression." The court in Finot recognized this and chose not to inquire into the appellant's reasons for wearing a beard.74
The reasoning of Stanley vs. Georgia with respect to obscenity, supplemented by the kind of argument that the California court made in Finot with respect to personal appearances, will undoubtedly be used as starting points for an attack on the marijuana possession statutes across the country. However, in Stanley there appears a rather cryptic footnote inserted possibly to forestall just such attacks.75
What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.
Such a statement, while mere dictum and not necessary to the case, may signal the court's attitude towards such future cases involving narcotics possession laws or may have simply been necessary to gain a majority of the justices to adhere to the majority opinion in Stanley. Justices White and Brennan concurred in a separate opinion written by Justice Stewart on the basis that the search warrant used to gain access to the defendant's home was faulty and on that basis alone the conviction should have been reversed."
In considering the constitutional dimensions of marijuana possession, the question squarely presented is whether possession incident to private use can be brought within a First Amendment right of personal privacy or self-expression, contrary to the footnote in Stanley that narcotics statutes are excluded. By analyzing the nature of the drug ( affecting one's consciousness ),77 the reasons for its use ( clearly for personal expression ),78 and the conduct at issue (possession for private use), the scope of self-expression would appear to comprehend such conduct. Unless a person has certain freedoms to formulate his thoughts (free from coerced beliefs" and free to choose the educational institutions he will attend ),8° to prepare what he will say or do with complete license ( unedited obscenity81 or defamation ), to inspire himself in less than conventional fashions (meditation, fasting, hair-shirts, drugs ),82 to alter his surroundings to suit his needs (trave1,88 associations)," or to assume different modes of personal habits and physical appearances ( hair; beard, clothes ),88 the guarantees of free speech and the pluralistic quality of American life would lose much of their substance and impact.
The United States Supreme Court in Pierce vs. Society of Sisters" protected a student's right to attend a private school when the state law would have compelled only public school attendance. Likewise in Meyer vs. Nebraska" the content of the curriculum at a private school was protected from arbitrary state regulation. These cases, although old are still good law and can be considered First Amendment guarantees of a person's right to self-expression, whereby he may develop and direct his thinking as he sees fit.88 By this analysis they can be considered privacy cases in both the associational and personal sense. In Griswold, Justice Douglas referred to these cases among others as maintaining that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." 89
In the same sense that freedom of association enhances "effective advocacy of both public and private points of view," 9° the judicially recognized right to travel within and without the United States might be considered a guarantee antecedent and essential to freedom of expression.91 Although travel could be said to be a general liberty as was the case in Kent vs. Dulles," mobility and personal encounters are crucial to the acquisition and dissemination of ideas. The federal Riot Control Act of 1968, making criminal interstate travel to incite riots, clearly recognized this.93 In Kent the Supreme Court said that "travel may be as close to the heart of the individual as the choice of what he eats, or wears or reads." 94
One difficulty with the extension of the First Amendment's protection into the area of purely personal conduct as in the case of drug use is that such a principle might comprehend too much to be judicially acceptable. Almost any personal conduct could be subsumed into a broad concept based upon the freedom of expression. The result is a general right of personal privacy. Yet as a matter of policy and preference, the courts have a tendency to resolve all doubts in favor of First Amendment protection. The United States Supreme Court has displayed this propensity with respect to the First Amendment while limiting the use of the due process clause of the Fifth and Fourteenth Amendments as sources of personal liberties.95 The use of the First Amendment would therefore be impelled by expediency as well as principle.
Any extension of the First Amendment would obviously be limited by the reasons for the liberalization: (1) that the conduct to be protected is purely personal and (2) involves an activity related to expression. By definition possession of marijuana for one's own use is personal; while the fact that marijuana is an euphoric drug which clearly affects one's consciousness gives it a claim of self-expression derived from the nature of the drug and the reasons for its use.98
Whether or not the constitutional arguments with respect to the use and possession of marijuana are accepted, the privacy value remains one that a legislature should consider in formulating the drug laws. Not only are values of personal privacy infringed upon but the attendant supplementary statutes prohibiting the presence of a person in a place where marijuana is used97 limits one's freedom of movement and restricts one's associational privacy broadly construed. At least one state has held this kind of statute unconstitutional." Furthermore, the technique of police detection required to enforce this kind of consensual law with no "victim" or complainant strains the protections of the fourth amendment's guarantees of situational privacy. Dogs trained to detect the odor of drugs, undercover agents, no knock" search warrants, and official "encouragement" to commit the crimes are examples of such techniques."
The ensuing discussion will continue the constitutional approach to the problem and will deal with the balancing of personal privacy against the governmental interests.
The Balancing Approach
If a court were to find that possession of marijuana for personal use fell within one of the constitutional rights raised above, the marijuana possession statute would not be invalidated automatically. Under the prevailing view, where some sort of conduct is involved, the state's interest would be balanced against the constitutional right. Consequently, it is important to examine the general approach of the courts to constitutional questions in which personal liberties are limited by state or federal law either criminally or as conditions to the receipt of any governmental benefit.
In general the current tests for deciding the constitutionality of criminal statutes conflicting with conduct falling within protected personal liberties, particularly those activities protected by the first amendment, can be condensed into three steps:
1. the restraints on personal liberties must rationally relate to a legitimate object of the police power (the minimum rationality test),
2. the state must demonstrate that such restraints outweigh the resulting impairment of constitutional rights (the balancing test),
3. no alternatives less subversive of constitutional rights are available (the least restrictive alternative test).
Such an analysis is essentially a combination of tests presently used by the United States Supreme Court in dealing with first amendment cases and is useful for that reason.13° An enumerated approach has been expressly applied by the California Supreme Court in dealing with deprivations of governmental benefits where political rights, personal rights and rights of welfare clients were asserted.101 The balancing test was also applied in a criminal case involving drugs in California. People vs. Woody102 is an excellent example of the court's refusal to decide that a mere rational nexus between the statute and the state's avowed purpose is sufficient to uphold the statute. Instead the court applied the technique of balancing the infringement on the personal liberty against the interest of the state in regulating the individual's conduct with the state carrying the burden.
The defendant, an American Indian, was convicted for possession of peyote,103 but contended that the law conflicted with his use of it as a form of religious expression as a member of the Native American Church. The court, considering the record independently, examined the conflicting interests of the state and the individual and reversed the conviction.
We have weighed the competing values represented in this case on the symbolic scale of constitutionality. On the one side we have placed the weight of freedom of religion as protected by the First Amendment; on the other, the weight of the state's "compelling interest." Since the use of peyote incorporates the essence of the religious expression, the first weight is heavy. Yet the use of peyote presents only slight danger to the state and to the enforcement of its laws; the second weight is relatively light. The scale tips in favor of the constitutional protection.104
This is the prevailing test being used by the United States Supreme Court as well. In Griswold the court rejected the minimum rationality standard and reviewed the judgment of the state legislature.'°5 Justice Goldberg gave the reason for this in his concurrence:
In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." 106
In Griswold the alleged purpose of the Connecticut legislature was to discourage extramarital relations; and the statute rationally promoted this purpose. In spite of this the state did not carry the burden of demonstrating that the purpose of the statute was compelling enough to warrant the infringement of the right of privacy.
Even where a compelling interest might be shown by the state, a further test must be satisfied: that there must be no alternative less restrictive of constitutional rights available. It would seem that the presence of alernatives less subversive of individual liberty is really part of the compelling interest argument. The state cannot have a "compelling interest" strong enough to outweigh the infringement of an individual's personal liberties if there are other alternatives less subversive of constitutional rights available. The broad sweep of the Connecticut statute was a major point in Griswold and Justice Douglas recognized it saying "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." 107
The Connecticut legislature sought to attain its avowed purpose through means that had a "maximum destructive impact" on the rights of an individual. In such a situation narrower means are appropriate to achieve the same ends.'"
As a matter of judicial review, when constitutional questions have been presented involving personal liberties, the courts have relied on their own evaluations of scientific facts and expert testimony by independently reviewing the whole record in order to weigh the interests. A constitutional question involving the "compelling interest" of a state is a mixed question of law and fact that necessitates such a review. The question before the court, therefore, is subject to a constitutional judgment in which the lower court's findings are not binding upon the appellate court.109 One example of this with respect to drugs is People vs. Woody where the court examined the whole record and drew its own conclusions from the facts and testimony in hold-
ing that peyote could not work a permanent deleterious injury on the user.110
Were the marijuana possession statute to be attacked as depriving an individual of his right of privacy, it would appear that the reviewing court would take into consideration the entire record for independent judgment on the constitutional question. The court would then apply the compelling interest, least restrictive alternative test.
The Governmental Interest
As this discussion has indicated, if a court found that possession of marijuana came within the right of privacy or another constitutional right, there would be no assurance that the statute would be declared unconstitutional. If, under the balancing test, the state can successfully show a "compelling interest" why the personal right should be abridged by methods which are not unnecessarily broad, the statute will stand. For this reason it is important to examine the facts and information available that might be introduced into the record as evidence concerning marijuana and its effects on the user and society. By the presence of such evidence in the record, an appellate court could independently consider such facts in making its decision.
It is not within the scope of this article or the competence of the author to delve into the scientifically complex factual bases of the arguments for and against marijuana. This is the active concern of those qualified in the relevant fields. In considering these governmental interests, methodical analysis is a prerequisite, since past research has appeared to be selective at best, seemingly mixed with many myths, misconceptions, and plain deception of rationale.111 This scarcity of authoritative evidence is particularly evident when the information concerning marijuana is compared with what is known about other substances such as alcohol, tobacco, and the hard narcotics.
The legislator, judge, lawyer or interested observer should ask what considerations are within the scope of the police power—that is what are the proper governmental interests? What facts, studies or arguments support or detract from the claim? Finally, what weight does the conclusion carry alone and together with other governmental interests with respect to the constitutional rights asserted or, for that matter, the costs involved in the legislative determination?
From the most frequently advanced and widely publicized arguments marshalled against the use of marijuana and therefore its possession three categories can be constructed:
1. that use of marijuana leads to criminal acts (violent crimes, sex crimes, bizarre acts),
2. that use of marijuana is a steppingstone to addiction to other narcotics (marijuana is not physically addictive),
3. marijuana use is harmful to the user (suicides, psychosis, physical and psychological deterioration, alienation).
There also appears to be another group of reasons which does not get much articulation and constitutes a fourth category. That is, society just will not tolerate this sort of conduct and its societal effects ("hippieism," passive or contemplative life styles, social dependence). Such reasons are difficult to refute since they do not necessarily rest on factual grounds for their support.
The following discussion will consider these categories only generally, indicating which issues represent real governmental interests and why.
The answer to the question whether use of marijuana gives rise to criminal acts may be divided into three parts. The first is that governmental interest is really aimed at crimes not caused by drug use. Drug oriented or "secondary crimes" such as possession with intent to se11,112 failure to pay taxes on marijuana,113 being present in a place where marijuana is used,114 and being under the influence of marljuana118 are criminal acts only because the drug itself is part of the crime. As one act is made criminal, an entire process becomes criminal; and it is in that sense only that criminal activity is increased.'" It should be noted here that since marijuana is not physically addictive, the user will not be under a physical compulsion to steal and commit other crimes to support a habit.
Secondly, the statistics that the majority of marijuana users are first offenders, and that marijuana therefore introduces them to a life of crime that brings them into contact with other criminals, are self-contradictory.111 Such statistics simply indicate that the use of marijuana may lead to being arrested for the offense of possession of marijuana or related offenses; but for those statutes there is no further criminal activity.
The third and real governmental interest is whether or not the use marijuana releases certain antisocial tendencies that result in crimes against the property or person of another. This is the classic image of the depraved "dopefiend," given wide coverage in the early literature on the subject. Although Dr. A. Lindesmith supposedly exposed this argument to be a myth in 1940,118 it is a valid governmental interest which should be closely considered. Yet the same argument the United States Supreme Court made in Stanley vs. Georgia concerning the tenous link between obscenity and crime can be made about any deviant social behavior or crimes of violence which might be found to stem from exposure to marijuana. Such concerns are not matters of the state's interest until they are manifested in the actual crime. "Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law. . ." 119
The government's prevention of marijuana use as a steppingstone to addictive narcotics would be a valid interest if we assume (1) that such use does in fact lead to addiction, and (2) that the state has an interest in keeping an individual from "socially" destroying himself in utilitarian terms. This sort of governmental interest is based upon a paternalistic "best interest" theory which claims that the addict like the person who would commit suicide is not competent to make this kind of decision. Indeed, Blackstone complained that juries in England used to hold those who committed suicide not guilty of this heinous crime by reason of their insanity, since no sane man would take his life.120 This avoided the severe penalties of cutting off the hand that committed the act, driving a stake through the body, forfeiture of the deceased's estate and damage to the family name. Although these penalties no longer exist, the question is a jurisprudential one whether the "best interest" theory should persist and to what degree.
Contrary to J. S. Mill's argument that this is a personal choice and no business of the state, H. L. A. Hart would argue with respect to drugs that there is a "general decline in the belief that individuals know their own interests best." 121 This view has been roundly criticized with the counterargument that the state becomes entirely involved at this point with a person's life and intimate personal choices without any justifying social interest other than saving a person from himself ( whatever that means ).122 There would seem to be no stopping place other than total legislative discretion under this kind of "best interest" reasoning. This same kind of objection also becomes relevant when the question of marijuana's effect on the user arises.
A valid governmental interest could exist in the case of addiction where the addict and his dependents become economically dependent on the state. This, however, is a highly contingent governmental interest that depends on the wealth and family of the addict. It might be asked whether a rich bachelor should be held legally accountable for crimes relating to his addiction in the same way as a poor man with a large family.123
The statistics correlating the use of marijuana with addiction to other drugs raise a threshold problem. More basic reasons may exist
for addiction, such as psychological or environmental factors.124 Assuming addiction is a valid state interest, this question of causation in fact is a relevant consideration.
HARM TO THE USER AND THE PUBLIC DECENCY
The most significant area of controversy is raised by the questions how much and what kind of harm to the user justifies a governmental interest in preventing him from using the drug? As discussed above, with respect to addiction a basic consideration is whether personal harm is a valid governmental interest at all. The objection to the best interest theory becomes all the more acute when, unlike suicide which obviates future personal choice, the harm to the user is not a conclusive fact but speculative or a mere risk at best. Furthermore, to balance a right of personal privacy with a governmental interest in protecting a person from his own actions gives rise to a paradoxical situation. Does the Constitution create a personal right, only to have that right limited by a conciding governmental interest? It would seem that more should be required of the state in logic and fairness to override a primary constitutional right or even general values of privacy and personal autonomy.
Where only the drug user is directly affected, certain values are involved in deciding whether or not there is any "harm" to society. This is the point where morals and empirical evidence become confused and where the debate over regulation of marijuana will probably focus unless some inherently destructive agent or characteristic of the drug is discovered that significantly involves others, such as chromosome damage.125 The basic question is what interest` does society have in preventing marijuana use if new life styles are adopted because of use of the drug that "shock" the public's moral conscience (and perhaps lower the Gross National Product)? If a quietistic or contemplative state is encouraged or attained in which the person no longer reveres commonly held values of work and success, is this a basis for limiting the use of such a drug? What objections could be raised to the use of a substance which might provide the user with different and perhaps socially unacceptable insights or perspectives? Assuming that there is no permanent physical effect,126 we are no longer concerned with the person's "best interest" but a purely societal interest in maintaining certain moral, economic and social values.
This question has been abstractly fought out in the controversy between Lord Patrick Devlin and H. L. A. Hart, leading English jurists.'" Hart maintains that morality, as such, cannot be given force of law in a society that accepts individual liberty as a value. To limit personal choice to use marijuana privately on the grounds that the mere belief that its use is wrong, therefore harmful, is inconsistent with individual liberty and effectively reduces this liberty to do "those things to which no one else seriously objects." 128 Clearly a deadly veto power would be given majoritarian beliefs or revulsions over minority conduct and nonconformity which only indirectly affect the society. It would not then be surprising to find this supposed governmental interest dressed up in scientific claims that drugs cause "psychotic" reactions or other medically acceptable labels for nonconforming conduct and beliefs.129 This shifts the burden back onto the individual raising the "harm to the user" issue once again. The few cases dealing with this aspect have too readily accepted such medical characterizations of the drug experience without qualification.135
Given that the courts and the legislatures are not particularly attuned to this jurisprudential issue of "harm" to the user and society, there is a pressing need for more research and thought in this area by legal philosophers, particularly Americans knowledgeable in our constitutional values, and by psychologists, psychiatrists, and sociologists in conjunction with the law.
The laws against possession of marijuana and its use do not significantly control the proscribed conduct. The difficulty of detecting offenders; widespread skepticism of any rational basis for the law, combined with the absence of a complainant because of the personal nature of the crime, make the laws quite difficult to enforce. In this light the concept of personal privacy deserves closer judicial and legislative scrutiny as a substantive constitutional guarantee and as a societal value. Personal privacy may be considered as standing alone in the Constitution of the United States or, more likely tucked into the first amendment. Whether or not privacy as a constitutional value is accepted, it remains a value to be weighed in any thorough consideration of the wisdom of the laws making use and possession of marijuana criminal. While lawyers, judges and legislators may speculate on the medical and sociological effects of marijuana and base such speculations on inconclusive information at best, severe penalties for its use and possession remain. It would seem that such speculations, combined with ignorance and fear of marijuana and its effects, is a rather tenuous base for making possession a crime at all, much less a felony. Hopefully with more authoritative information and a proper analysis of all the costs involved in maintaining such a law on the books, the decision whether to maintain the legal proscription of marijuana use and possession will become more precise and rational.
1 The seminal legal articles dealing with the current marijuana laws are Boyko & Rotberg, "Constitutional Objections to California's Marijuana Possession Statute," 14 U.C.L.A.L. Rev. 773 (1967) and Laughlin, "LSD-25 and Other Hallucinogens: A Pre-Reform Proposal," 36 Geo. Wash. L. Rev. 23 ( 1967).
Many of the articles in the following two symposia deal with marijuana: "Symposium Drugs and the Law," 56 Calif. L. Rev. 1 (1968); "Symposium: Narcotic and Hallucinogenic Drugs," 19 Hastings L. Rev. 601 (1968). Student notes and comments have been on the increase. E.g., "Marijuana and the Law: The Constitutional Challenge to Marijuana Laws in Light of the Social Aspects of Marijuana Use," 13 Villanova L. Rev. 851 (1968); "Legalization of Marijuana," 21 Vand. L. Rev. 517 (1968); "Hallucinogens," 68 Colum. L. Rev. 521 (1968); "Constitutional Law: (Freedom of Religion)/( LSD) = (Psychedelic Dilemma)," 41 Temple L. Q. 52 (1967); "Constitutional Law—Freedom of Religion—Use of Drugs," 20 Case W. Res. L. Rev. 251 (1968); "Marijuana Laws: A Need for Reform," 22 Ark. L. Rev. 359 (1968); "Substantive Due Process and Felony Treatment of Pot Smokers: The Current Conflict," 2 Ga. L. Rev. 247 (1968); "Marijuana and the Law: Problem of Education or Enforcement," 1 U.S.F.V.L. Rev. 139 (1968).
2 See generally, W. Eldridge, Narcotics and the Law (2d ed. 1967); A. Linde-smith, The Addict and the Law (1965); E. Schur, Drug Addiction in Britain and America: The Impact on Public Policy (1962); Symposia, supra note 1.
3 On the medical-legal characterizations of deviance, see T. Szasz, Law, Liberty and Psychiatry (1963). On the sociology of deviance dealing with marijuana use, see H. Becker, Outsiders: Studies in the Sociology of Deviance, 41-78 (1983).The "morality" of marijuana use is reflected in the writings of H. Anslinger & W. Tompkins, The Traffic in Narcotics ( 1953 ); W. Oursler, Marijuana, The Facts, The Truth ( 1968 ). Rowell & Rowell, On the Trail of Marijuana, the Weed of Madness, 33 ( 1939) states: "We know that marijuana-1. Destroys will power making a jellyfish of the user. . . . Incites to revolting immoralities, including rape and murder. . . . Ruins careers forever. . . . Causes insanity as its specialty.'
Marijuana use along with other drug use has been considered as another form of recreation. See Symposium on Recreational Drug Use, 9 J. of Health and Soc'l Behavior 99 ( 1968 ). See also How to Use Pot; course description from the Bulletin of Mid-Peninsula Free University, Stanford, Calif., 51 Sat. Review 62 ( Sept. 21, 1968).
4 Bureau of Criminal Statistics, Drug Arrests and Dispositions in California 1964, at 51, shows that arrests for possession of marijuana have tripled since 1960. The report also indicates that juvenile arrests for marijuana possession have increased over 500% since 1960 Id. at 88.
In 1966 65.3% of those adults arrested for possession of marijuana had no prior record, and 22.1% had only a record for minor offenses. Bureau of Criminal Statistics, Drug Arrests and Dispositions in California 1966 at 63.
5 Recent developments in constitutional law have limited some deceptive and secretive police techniques and upheld others. Katz v. U.S., 389 U.S. 347 (1967) [warrant required for bugging device]; Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096 ( 1968 ) [wiretap in violation of federal law inadmissible in state court]. Hoffa v. U.S., 385 U.S. 293 (1966 ); Osborn v. U.S., 385 U.S. 323 ( 1966 ); and Lewis v. U.S., 385 U.S. 206 ( 1966) [upholding the propriety of police spies]. Police "encouragement" of crime is permissible where "entrapment" is not. Sherman v. U.S. 356 U.S. 369 (1958 ); Sorrels v. U.S., 287 U.S. 435 ( 1932 ). See generally, Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L. J. 1091 (1951); Note "Judicial Control of Secret Agents," 76 Yale L. J. 994 (1967).
It is interesting to note that the Wickersham Report on the Prohibition Laws noted many of the same "costs" to society in enforcing that law. National Commission on Law Observance and Enforcement, Report on the Enforcement of the Prohibition Laws of the United States ( Wickersham Report) 91, 97, 99-105 (1931).
6 Becker, supra note 3, at 59-78. Fiddle, "The Addict Culture and Movementinto and out of Hospitals," U.S. Senate Committee on the Judiciary, Subcommittee to Investigate Juvenile Delinquency. Hearings part 13 at 3156 (1963 ).
A subculture really redefines for itself a new type of privacy by its (1) ideology of justification, ( 2) reproductive cycle (proselytism), ( 3) defensive communications, ( 4) neighborhood warning systems, (5) ritualistic, magical, and cyclical patterns, and (6) attractiveness of personal relations. Fiddle, supra at 3157-60.
7 Cal. Health & Safety Code § 11530.
8 Cal. Health & Safety Code § 11910.
9 Cal. Welf. & Inst'ns Code § 3009 states: "A 'narcotic addict' as used in this subdivision refers to any person . . . who is addicted to the unlawful use of any narcotic . . . except marijuana." (emphasis added).
10 Cal. Health & Safety Code § 11500.
11 Where possession by certain groups likely to misuse alcohol is discouraged, the method of control is to restrict the sale of alcoholic beverages to them. E.g., Cal. Bus. & Prof. Code § 25658 (a) makes sale of alcoholic beverages to a minor a misdemeanor, and Cal. Pen. Code § 397 makes the sale of alcoholic beverages to any habitual drunk a misdemeanor.
It has been suggested that the difference between the drug and alcohol laws might reflect fundamental differences in societal attitudes based upon the puritan work ethic and its intolerance of inaction. See Murphy, "The Cannabis Habit: A Review of Recent Psychiatric Literature," 15 U.N. Bull. on Narcotics 20 ( 1963 ); Eldridge, supra note 2; Watts, "Psychedelics and Religious Experience," 56 Calif. L. Rev. 74,79-85 ( 1968 ).
12 Cal. Pen. Code § 647 ( f ) punishes as a misdemeanant one "[w]ho is found in any public place under the influence of intoxicating liquor. . . ."
13 Cal. Vehicle Code §§ 23101-02.
14 Cal. Stats. 1907, ch. 102 §§ 1-10, at 124-26 ( Indian hemp, another name for marijuana, is used in the statute ).
15 Cal. Stats. 1915, ch. 604, § 2, at 1067-71 ( Loco weed, another name for marijuana is used in the statute ).
16 Cal. Stats. 1929, ch. 216, § 1, at 380-83.
17 Cal. Stats. 1939, ch. 60 §§ 11000-797, at 755-76.
18 Cal. Stats. 1939, ch. 60, § 11712, at 771.
19 Cal. Stats. 1959, ch. 1112, § 7, at 3194-95.
20 Cal. Stats. 1961, ch. 274, § 7, at 1305.
21 Cal. Stats. 1959, ch. 1112, §7, at 3194-95.
22 Cal. Stats. 1968, ch. 1465, § 1, at —.
23 R. Perkins, Criminal Law 8-21 (1957).
24 On the establishment and free exercise of religion: see U.S. v. Kuch, 288 F.Supp. 439 (D.D.C. 1968); Leary v. U.S., 383 F.2d 851. (5th Cir. 1967) cert. granted on other grounds, 392 U.S. 903 (June 10, 1968); People v. Mitchell, 244 Cal. App.2d 176, 52 Cal. Rptr. 884 (1966); State v. Bullard, 267 N.C. 599, 148 S.E.2d 565 (1966).
On due process and equal protection: People v. Aguiar, 257 Cal. App.2d 597, 65 Cal. Rptr. 171 (1968); People v. Glaser, 238 Cal. App.2d 819, 48 Cal. Rptr. 427 (1965); People v. Mistriel, 110 Cal. App.2d 110, 241 P.2d 1050 (1952 ); People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965); Normand v. People, Colo. —, 440 P.2d 282 (1968) [not cruel and unusual punishment].
25 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).
26 Cal. Health & Safety Code § 11500.
27 This was a major point in People v. Woody, 61 Cal. 2d at 720-22, 394 P.2d at 817-18, 40 Cal. Rptr. at 73-74 (1964 ). In another case the California Supreme Court granted habeas corpus to a defendant convicted of peyote possession and remanded to the trial court on the question of whether defendant's belief that the use of peyote for religious purposes was honest and bona fide. In re Grady, 61 Cal. 2d 887, 394 P.2d 728, 39 Cal. Rptr. 912 ( 1964 ).
28 383 F.2d 851 (5th Cir. 1967) rev'd on other grounds 394 U.S. —, 37 U.S.L.W. 4397 ( 1969). For an interesting article by Dr. Leary's counsel which includes the brief to the Fifth Circuit in that case, see Finer, "Psychedelics and Religious Freedom," 19 Hastings L. J. 667 (1968 ). With respect to the essentiality of marijuana to Dr. Leary's practice of Hinduism, the Fifth Circuit said at 860: "There is no evidence in this case that the use of marijuana is a formal requisite of the practices of Hinduism. . . . At most, the evidence shows that it is considered by some as being an aid to attaining consciousness expansion by which an individual can more easily meditate or commune with his god." (Emphasis added.)
29 288 F. Supp. 439 ( D.D.C. 1968).
30 370 U.S. 660 (1962). The case struck down as unconstitutional a California statute making criminal the status of being "addicted to the use of narcotics." Justice Douglas in a concurring opinion, id. at 676, said: "A punishment all out of proportion to the offense may bring it within the ban against 'cruel and unusual punishments.' " Compare Driver v. Hinnat, 356 F.2d 761 (4th Cir. 1961) and Easter v. Dist. of Columbia, 361 F.2d 50 (D.C. Cir. 1966), where the cruel and usual punishment argument was successfully applied to drunkenness prosecutions of alcoholics under local statutes, with Powell v. Texas, 392 U.S. 514, (1968) [4:1:4 split on the offense of being found intoxicated in a public place].
31 Compare People v. Aguiar, 257 Cal. App. 2d 597, 603, 65 Cal. Rptr. 171, 174 (1968) with Normand v. People, — Colo —, 440 P.2d 282 (1968 ). cf. Fenster v. Leary, 20 N.Y.2d 309, 229 N.E.2d 426, 282 N.Y.S.2d 739 ( 1967 ) [vagrancy statute overturned]. See generally, Packer, "Making the Punishment Fit the Crime," 77 Harv. L. Rev. 1071 ( 1964).
32 257 Cal. App.2d 597, 65 Cal. Rptr. 171 (1968 ). The court quite properly refused to second-guess the legislature where some harm was possible and no constitutionally protected rights were infringed upon. Accord. People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965).
33 Loving v. Va., 388 U.S. 1 (1967) [race]; Levy v. Louisiana, 391 U.S. 68 ( 1968 ) [Mother-child status]; McLaughlin v. Fla., 379 U.S. 184 ( 1964 [race]; Skinner v. Okla., 316 U.S. 535 ( 1942 ) [procreation]. See generally Tussman & Tenbroeck, "The Equal Protection of the Laws," 37 Calif. L. Rev. 341 (1949 ).
34 The philosophical and empirical bases for this rather bald assertion have been discussed extensively. A. Westin, Privacy and Freedom, 3-63 (1967); Fried, "Privacy," 77 Yale L.J. 475 ( 1968); Gross, "The Concept of Privacy," 42 N.Y.U.L. Rev. 34 ( 1967 ); Beaney, "The Griswold Case and the Expanding Right to Privacy," 1966 Wis. L. Rev. 979 (1966); Griswold, "The Right to be Let Alone," 55 Nw L. Rev. 216 ( 1960); Warren & Brandeis, "The Right to Privacy," 4 Harv. L. Rev. 193 ( 1890 ); Prosser, "Privacy," 48 Calif. L. Rev. 383 ( 1960); Bloustein, "Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser," 39 N.Y.U.L. Rev. 962 ( 1964 ); Symposium, on the Griswold Case and the Right of Privacy, 64 Mich. L. Rev. 197-288 (1966 ); Symposium, Privacy,31 Law & Contemp. Prob. 251 ( 1966); Note, "Right to Privacy: Social Interest and Legal Right," 51 Minn. L. Rev. 531 ( 1967 ).
35 Westin, supra note 34, at 25-28,42-51,350.
36 The right of association is constitutionally recognized and protected. United Mine Workers v. Ill. Bar Ass'n 389 U.S. 217 ( 1967 ); Brotherhood of Railroad Trainmen v. Va., 377 U.S. 1 (1964 ); NAACP v. Button, 371 U.S. 415 ( 1963).
37 Westin, supra note 34, at 356-64.
38 In Katz v. U.S., 389 U.S. 347 ( 1967), overruling in effect Olmstead v. U.S., 277 U.S. 438 ( 1928) and Goldman v. U.S., 316 U.S. 129 ( 1942 ), the Court held that the fourth amendment protects persons not places thus freeing it of prior conceptual limitations of property law. Compare Silverman v. U.S., 365 U.S. 505 ( 1961) and Clinton v. Va., 377 U.S. 158 ( 1964 ) with Olmstead v. U.S., supra, and Goldman v. U.S., supra.
See also Carroll v. U.S., 267 U.S. 132 ( 1925) [car]; Katz v. U.S., supra (telephone booth); Terry v. Ohio, 399 U.S. 1 ( 1968) [public stop and frisk].
39 Westin, supra note 34, at 33-34.
40 Lord Devlin in The Enforcement of Morals 7 (1965) and Basil Mitchell in Law, Morality, and Religion in a Secular Society 5 ( 1967 ) confuse the personal and private elements. Euthanasia, duelling, abortion, bigamy and incest are not wholly personal acts as they by definition involve two or more persons. The fact they can be performed in private is not really helpful unless that refers to their consensual nature.
41 381 U.S. 479 ( 1965).
42 277 U.S. 438, 478 ( 1928 ). See cases cited note 38 supra for a breakdown of areas protected by the fourth amendment.
43 Warren & Brandeis, supra note 34; see generally W. Prosser, Torts § 112, at 829-51 ( 3rd ed., 1964); Prosser, supra note 34; Bloustein, supra note 34.
44 Conn. Gen. Stat. Rev. §§ 32-33 (1958 ). "Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."
45 381 U.S. at 527 ( dissenting opinion).
46 See text accompanying notes 34-40 supra.
47 See note 43 supra.
48 381 U.S. at 485.
49The Supreme Court has been particularly solicitious of the institution of marriage over the years. See Reynolds v. U.S., 98 U.S. 145 ( 1878 ); Musser v. Utah, 333 U.S. 95 ( 1948) [bigamy convictions upheld]; Loving v. Va., 388 U.S. 1 ( 1967 ) [miscegenation statute overturned].
50 381 U.S. at 484.
52Id. at 482. See Weiman v. Updegraff, 344 U.S. 183, 195 (1952).
53 Although six justices found privacy, they did not all find it in the same place in the Constitution. Justices Goldberg, Brennan, and Chief Justice Warren joined with Justice Douglas in finding privacy supported by fundamental personal rights found in the penumbra of the Bill of Rights. Id. at 486.
Justice Goldberg, Brennan and Chief Justice Warren went on to use the ninth amendment as authority for the right of privacy. Id. at 488.
Justice Harlan found support for privacy in the due process clause of the fourteenth amendment. "The Due Process Clause of the Fourteenth Amendment stands . . . on its own bottom." Id. at 500.
Justice White also relied on the fourteenth amendment as the Connecticut statute deprived married couples of liberty without due process of law. Id. at 502.
54 The Griswold decision has been criticized as ill-founded and vague. See for example, the dissent of Justice Black in Griswold, 381 U.S. at 507; Kauper, "Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case," 64 Mich. L. Rev. 235, 244, 252 ( 1965).
55 E.g., State v. Abellano, 50 Haw. —, 441 P.2d 333, 335 ( 1968 ) [concurring opinion] recognizing a "right to movement" in the ninth amendment. Finot v. Pasadena City Bd. of Educ., 250 Cal. App.2d 189, 58 Cal. Rptr. 520 ( 1967)[right to wear a beard within first amendment]; American Motorcycle Ass'n v. Davids, 11 Mich. App. 351, 158 N.W.2d 72 (1988) [dictum] noted, 82 Harv. L. Rev. 469 (1968) [statute requiring motorcycle helmet not within police power].
56 381 U.S. at 485.
57 E.g., Memoirs v. Mass. 383 U.S. 413 (1966) [obscenity defined]; Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) [libel protected under "public figure" doctrine].
58 E.g., Saia v. N.Y., 334 U.S. 558 (1948) [loudspeaker allowed]; Kunz v. N.Y., 340 U.S. 290 (1951); Cantwell v. Conn. 310 U.S. 296 (1940) [religious advocates].
59 DeJonge v. Ore., 229 U.S. 353 (1937). Compare Brown v. La, 383 U.S. 131 (1966); Cox v. La, 379 U.S. 536 (1965); Edwards v. S. C., 372 U.S. 229 (1963) with Adderly v. Fla., 385 U.S. 39 (1966) and U.S. v. O'Brien, 391 U.S. 367 (1968). See generally Kalven, "The Concept of the Public Forum: Cox v. Louisiana," 1965 Sup. Ct. Rev. 1 ( 1965).
60 61 Ca1.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).
61 Fort, "Social and Legal Response to Pleasure-Giving Drugs," The Utopiates 213-14 (Blum ed. 1964).
62 Watts, "Psychedelics and Religious Experience," 56 Calif. L. Rev. 74, 7679 (1968).
63 E.g., Davis v. Firment, 269 F. Supp. 524 (D.La. 1967) [right to wear long hair not within ninth amendment or right to privacy]; Finot v. Pasadena City Bd. of Educ., 250 Cal. App.2d 189, 58 Cal. Rptr. 520 (1967) [beard not within right to privacy but is protected by first amendment]; But see State v. Abelian, Haw. —, 441 P.2d 333, 335 ( 1968 ) [concurring opinion].
64 394 U.S. 557 (1969).
65 Id. at 564. The Olmstead dissent is quoted in the text of this article accompanying footnote 42.
66 394 U.S. at 565.
69 Cases cited note 59 supra.
70 T. Emerson, Toward a General Theory of the First Amendment, 64 ( 1967).
72 U.S. v. Associated Press, 52 F. Supp. 362, 372 ( 1943) quoted by Justice Frankfurter concurring in the same case on appeal, 326 U.S. 1, 28 (1944).
73 250 Cal. App.2d 189, 58 Cal. Rptr. 520 ( 1967).
74 Id. at 198, 58 Cal. Rptr. at 527.
75 Id. at 201, 58 Cal. Rptr. at 228-29.
76 394 U.S. at 568 n 11.
77 Id. at 569.
78 See text accompanying notes 61-62 supra.
80 West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
80 Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Meyer v. Neb., 262 U.S. 390 ( 1923 ).
81 Stanley v. Georgia, 394 U.S. 557 (1969); in re Klor, 64 Cal. 2d 816, 415 P.2d 791, 51 Cal. Rptr. 903 (1966).
82 The court in People v. Woody, 61 Cal. 2d at 727-28, 394 P.2d at 821-22, 40 Cal. Rptr. at 77-78, recognized this inspirational function when it said: "In a mass society which presses at every point toward conformity, the protection of self-expression, however unique, of the individual and the group becomes ever more important. The varying currents of the subcultures that flow into the mainstream of our national life give it depth and beauty. We preserve a greater value than an ancient tradition when we protect the rights of the Indians who honestly practiced an old religion in using peyote one night at a meeting in a desert hogan. . . ." [emphasis added].
The Fifth circuit in denying Dr. Leary a religious exemption from tie federal marijuana statute also saw this: "At most, the evidence shows that it is considered by some as being an aid to attaining consciousness expansion by which an individual can more easily meditate or commune with his god." Leary v. U.S., 383 U.S. 851, 860 (5th Cir. 1967). [emphasis added].
83 International. Kent v. Dulles, 357 U.S. 116, 125-27 (1958); Aptheker v. Sec. of State, 378 U.S. 500 (1964 ). Compare Zemel v. Rusk, 380 U.S. 1 (1965) with U.S. v. Laub, 385 U.S. 475 ( 1967) [area restrictions valid under Zemel not criminally enforceable].
Domestic. Edwards v. Calif., 314 U.S. 160 (1941); Shapiro v. Thompson, 394 U.S. 615 (1969 ).
84 Cases cited note 36 supra.
85 These kinds of issues usually arise in the context of deprivation of governmental benefits, not as criminal statutes. While adults appear to have the right to a physical appearance, students have consistently been denied these rights during their formative years. Compare Finot v. Pasadena City Bd. of Educ., 250 Cal. App. 2d 189, 58 Cal. Rptr. 520 ( 1967) with Akin v. Bd. of Educ. 262 Cal. App. 2d —, 68 Cal. Rptr. 557 (1968) [student denied right to wear beard while teacher was not]. See also Ferrell v. Dallas Independent School Dist., 392 F.2d 697 ( 1968 ) cert. den. 37 U.S.L.W. 3135 ( U.S. Oct. 15, 1968) [Douglas, J. dissenting]; David v. Firment, 269 F. Supp. 524 ( D. La. 1967); Leonard v. School Comm. of Attleboro, 349 Mass. 704, 212 N.E.2d 468, 14 A.L.R.3d 1192 ( 1965 ). Students' political rights are protected however. Tinker v. DesMoines Independent Community School Dist., 393 U.S. —, 37 U.S.L.W. 4121 (Feb. 24, 1969 ).
86 268 U.S. 510 (1925).
87 262 U.S. 390 ( 1923 ); see also Bartels v. Utah, 262 U.S. 404 (1923).
88 In Tinker v. DesMoines Independent School Dist., 393 U.S. —, 37 U.S.L.W.4121, 4122 ( Feb. 24, 1969) the Court cited Meyer and Pierce as first amendment cases.
89 381 U.S. at 482 [emphasis added].
90 NAACP v. Ala., 357 U.S. 449, 460 ( 1958).
91 On the right to travel see cases cited note 81 supra.
92 357 U.S. 116, 125 ( 1958 ).
93 18 U.S.C. §§ 2101-02 ( 1968 Supp.).
94 357 U.S. at 126.
95 A number of rights not squarely within the letter of the first amendment's protection of speech, press and assembly have nevertheless been recognized. Right of association, cases cited note 36 supra; right of inquiry and thought, Wieman v. Updegraff, 344 U.S. 183, 195 ( 1952 ) [Frankfurter, J., concurring]; right to distribute, read and receive literature or information, Martin v. Struthers, 319 U.S. 141 (1943 ). See generally M. Shapiro, Freedom of Speech, The Supreme Court and Judicial Review 34-39, 111-115 (1966).
96 See text accompanying notes 61-62 supra.
97 E.g., Cal. Health & Safety Code § 11556 provides: "It is unlawful to visit or to be in any room or place where any narcotics are being unlawfully smoked or used with knowledge that such activity is occurring."
98 State v. Abellano, 50 Haw. —, 441 P.2d 333, 335 (1968) ruled unconstitutional on the basis of vagueness and privacy a statute making it criminal to be present at a cockfight.
99 On the use of police dogs see "Purple Geese and Other Fighting Fauna," Time 41 ( Oct. 14, 1968 ). On the use of police techniques see cases and materials cited note 5 supra.
100 E.g., McLaughlin v. Fla., 379 U.S. 184, 196 ( 1964); Sherbert v. Verner, 374 U.S. 398, 406 ( 1963 ); Gibson v. Fla. Legislative Investigative Comm'n., 372 U.S. 539, 546 ( 1963); NAACP v. Button, 371 U.S. 415, 438-39 ( 1963); Bates v. City of Little Rock, 361 U.S. 516, 524 (1960).
101 Bagley v. Washington Township, 65 Ca1.2d 499, 501-02, 421 F.2d 409, 411, 55 Cal. Rptr. 401, 402 (1966) [political rights]; Rosenfield v. Malcolm, 65 Ca1.2d 559, 561, 421 P.2d 697, 698, 55 Cal. Rptr. 505, 506 ( 1967 ) [political rights]; Finot v. Pasadena City Bd. of Educ., 250 Cal. App.2d 189, 58 Cal. Rptr. 520 ( 1967 ) [personal rights]; Parrish v. Civil Service Comm., 66 Cal.2d —, 425 P.2d 223, 57 Cal. Rptr. 623 (1967 ); noted 18 Hastings L. J. 228 ( 1967 ) [privacy].
102 61 Ca1.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 ( 1964 ).
103 According to the court in Woody, peyote grows in small buds on the top of a small spineless cactus, Lophorphora williams ii, in Texas and northern Mexico. When taken internally, it causes vivid hallucinations and beyond this its users experience greater comprehension and even a sense of friendliness towards others. 61 Cal.2d at 720, 394 P.2d at 816, 40 Cal. Rptr. at 72. Cal. Health and Safety Code § 11500 makes possession of any narcotic other than marijuana a felony. For the planting provisions, see Cal. Health & Safety Code § 11540.
104 61 Ca1.2d at 727, 394 P.2d at 821, 40 Cal. Rptr. at 77.
105 381 U.S. at 482. In cases where economic interests are involved, the Supreme Court has invoked the minimum rationality standard holding that as long as the state law in question is rationally related to some permissible purpose within the police power of the state, the exercise of power is constitutional. E.g., Williamson v. Lee Optical, 348 U.S. 483, 487-88 ( 1955); Ferguson v. Skrupa, 372 U.S. 726 (1963).
106 381 U.S. at 497, quoting from Bates v. Little Rock, 361 U.S. 516, 524 (1960).
107 1381 U.S. at 485, quoting from NAACP v. Ala., 377 U.S. 288, 307 (1964 ).
108 381 U.S. at 485. See also NAACP v. Button, 371 U.S. 415, 433 ( 1963); Shelton v. Tucker, 364 U.S. 479, 488 (1960); Talley v. California, 362 U.S. 60, 63 ( 1960).
109 Oteri & Norris, "The Use of Expert and Documentary Evidence in a Constitutional Attack on a State Criminal Statute: The Marijuana Test Case," 56 Calif. L. Rev. 29 (1968). For discussion see Sherbert v. Verner, 374 U.S. 398, 406 ( 1963 ); Cox v. La., 379 U.S. 536 ( 1965). cf. Jackson v. Denno, 378 U.S. 368, 408 (1964) [voluntariness of confession re-examined]. See Karst, Legislative Facts in Constitutional Litigation, 1960 Sup. Ct. Rev. 75.
110 61 Cal.2d at 722, 394 P.2d at 818, 40 Cal. Rptr. at 74. The court, id. at 720, 394 P.2d at 816, 40 Cal. Rptr. at 72, also said: "An examination of the record as to the nature of peyote and its role in the religion practiced by defendants . . . compels the conclusion that the statutory prohibition most seriously infringes upon the observance of the religion." But see 39 Ops. Cal. Att'y Gen. 276 ( 1962 ).
In U.S. v. Kuch, 288 F. Supp. 439, 448-9 (D.D.C. 1968) the court reached the opposite result questioning the Woody decision. For a detailed view of the governmental interest see Finer, supra note 28, at 713-757.
111 Dr. Joel Fort is one of the most outspoken critics of the deception which has taken place. Dr. Fort has served on the medical staff of the U.S. Public Health Service Hospital in Lexington, Ky., and with the U.N. Division of Narcotic Drugs. He has been the director of both the Center for Treatment and Education on Alcoholism in Oakland, Calif. and the Health Department Center for Special Problems in San Francisco, California, and was a consultant on Drug Abuse for the World Health Organization. See Fort, "Social Problems of Drug Use and Drug Policies," 56 Calif. L. Rev. 17 ( 1968); Fort, supra note 61; and Fort, "AMA lies about pot," 7 Ramparts Mag. 12 ( Aug. 12, 1968). See also Finer, supra note 28 at 755-56.
The most recent study is Weil, "Clinical and Physiological Effects of Marijuana in Man," 162 Science 1234 ( Dec. 13, 1968). Bibliographies can be found in Israelsam, "Selected Bibliography on Marijuana and LSD-type Drugs," 56 Calif. L. Rev. 160 ( 1968) and in U.S. v. Kuch, 288 F. Supp. 439, 452 ( D.D.C. 1968 ) [judicial notice taken]. See Mandel, "Problems with Official Drug Statistics," 21 Stan. L. Rev. 991 (1969 ).
112 E.g., Cal. Health & Safety Code § 11530.5.
113 E.g., 26 U.S.C. §§ 4741-4744 ( 1964 ).
114 E.g., Cal. Health & Safety Code § 11556.
115 E.g., Cal. Health & Safety Code § 11721.
116E. Schur, Crimes without Victims, 174 ( 1965); Becker, supra note 3, at 1-18.
117 See statistics cited note 4 supra.
118 Lindesmith, —Dope Fiend' Mythology," 31 J. Crim. L. & Crim. 199 (1940).
119 394 U.S. 557,566-67 ( 1969).
120 4 Blackstone, Commentaries 189 ( Cooley 4th ed. 1899).
121 H. L. A. Hart, Law, Liberty & Morality 32-33 ( 1963 ).
122 Finer, supra note 28 at 722.
123 Cf. American Motorcycle Ass'n v. Davids, 11 Mich. App. 351, 158 N.W.2d 72 ( 1968 ) noted in 82 Harv. L. Rev. 469 ( 1968 ) [statute requiring motorcyclists to wear helmets not within legitimate goal of police power].
124 Clausen, "Social and Psychological Factors in Narcotics Addiction," 22 Law & Contemp. Probl. 34, 43 (1957 ).
125 See Weil, supra note 110.
126 Finer, supra note 28, at 728; J. S. Mill, On Liberty 125-26 (World's Classics ed. 1966); Laughlin, supra note 1, at 39-40.
127 See generally P. Devlin, The Enforcement of Morals ( 1965 ); H.L.A. Hart, supra note 19; Dworkin, Lord Devlin and the Enforcement of Morals, 75 Yale L.J. 986 (1966); and B. Mitchell, supra note 40.
128 Hart, supra note 119, at 47. Apparently the police power can control conduct in public which "shocks" the public decency. Nudity, drinking in public and other activities are so controlled. This would raise again the veto by majority recoil based not on indirectly finding out about the conduct, but a direct "shock.' It would appear to be a distinction in degree only and subject to the same objections.
129 See generally T. Szasz, supra note 3; Finer, supra note 28 at 723-24.
Sociologist Howard Becker suggests in a timely article that psychotic reaction may very well spring from the lack of an available person or group who will define to the user what he perceives or experiences thus alleviating panic and anxiety. In this light with sufficient psychological preparation and confidence he feels that psychotic reactions with all hallucinogenic drugs may be minimized. Becker, "History, Culture, and Subjective Experience: An Exploration of the Social Bases of Drug-Induced Experiences," 8 J. of Health and Soc'l Behavior, 163 (1967).
130 Leary v. U.S., 383 F.2d 851, 862 (5th Cir. 1967) quoting from State v. Bullard, 267 N.C. 599, 605, 148 S.E.2d 585, 569 (1966): "It is not a violation of his constitutional rights to forbid him, in the guise of his religion, to possess a drug which will produce hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox or paranoia. . • . [emphasis added]
U.S. v. Kuch, 288 F.Supp. at 446: "The drug marijuana may often . . . precipitate psychotic episodes. Among other reactions, hallucinations and delusions, impairment of judgment and memory, and confusion and delirium are common." See also Kuch, id. at 449.