Say I smoke marijuana not just because I find it pleasurable but because it is a form of counterculture expression. That is, smoking marijuana is a political act. I think that some in the 60s might have subscribed to that notion. I insist that weed is speech (and why not since money and flag burning seem to be), and the government cannot deny me exercise of that right. How do we square the general right of expression with problematic individual cases like the one above? Surely my exercise will get me arrested in many jurisdictions.

I have consulted an authoritative legal friend, who suggests the following line of thought. Is smoking marijuana a form of speech protected by the First Amendment? I cannot simply engage in an act and make the act a protected form of speech because I think or claim it is. There is also the objective test as to whether it has that meaning in the culture at large. In the 1960s smoking pot might have been taken as a protest, and yet today it might not, if only because its use is common. Besides, not any act, even literal speech, is protected under the First Amendment. One could not take unlawful killing, say, or "fighting words", for example incitements to criminal activity, to be protected. So far the law. It seems to me that very similar points apply, minus the Constitutional formulation, if the question is taken morally rather legally, in spite of the fact that the preservation of the democracy is not at the heart of morality.

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