The case that clarified that discussing medical marijuana is a free speech right, and that doctor patient confidentiality is not subject to criminal prosecution.
Conant v Walters, 2002
After the 1996 passage of California’s medical marijuana initiative, the Clinton Administration
threatened to investigate doctors and revoke their licenses to prescribe controlled substances and
participate in Medicaid and Medicare if they recommended medical marijuana to patients under
the new state law. A group of California physicians and patients filed suit in federal court, early in
1997, claiming a constitutional free-speech right, in the context of the doctor-patient relationship,
to discuss the potential risks and benefits of the medical use of cannabis. A preliminary injunction, issued in April 1997, prohibited federal officials from threatening or punishing
physicians for recommending marijuana to patients suffering from HIV/AIDS, cancer, glaucoma,
or seizures or muscle spasms associated with a chronic, debilitating condition.57 The court
subsequently made the injunction permanent in an unpublished opinion.
On appeal, the Ninth Circuit affirmed, in a 3-0 decision, the district court’s order entering a
permanent injunction. The federal government, the opinion states, “may not initiate an
investigation of a physician solely on the basis of a recommendation of marijuana within a bona
fide doctor-patient relationship, unless the government in good faith believes that it has
substantial evidence of criminal conduct.”58 The Bush Administration appealed, but the Supreme
Court refused to take the case.