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Last week, Elon Musk famously, or perhaps infamously, smoked a joint on The Joe Rogan Experience podcast. Or should we call it a potcast? Perhaps a more important question is, is this legal?
The Federal Communications Commission (FCC) has control over broadcasted television, such as ABC, NBC, and CBS, more than other forms of media because these channels are free to the public. Although the FCC has control over indecency on broadcasted content, it has no authority over smoking or drug use. So the FCC can't come after anyone in this situation.
Technically speaking, the police could use a YouTube video as evidence that a crime has taken place, and obtain a search warrant, and then search the area for contraband, such as drugs and drug paraphernalia, in amounts over the legal limit in your jurisdiction. Are the police going to do this for every pot smoking video on YouTube? Probably not, just as they aren't as likely to breakup your friendly, but illegal, neighborhood poker game. But if you smoke pot, in, say a police uniform, or rolled up in hundred dollar bills, you risk putting your head above the radar, and becoming a target.
Now, about that Elon Musk video. It was filmed in California, which has legalized pot for recreational use, and is legal similar to the manner in which alcohol and tobacco is. The consumer must be over 21, and can only consume where it is legal to smoke. Pretty much this means it is barred in any public places. So was it legal for Elon Musk to smoke anything in a place of business? Absolutely not. Not only was it a violation of California's marijuana laws, but it was also a violation of California's Smoking Laws, 6404.5 of the Labor Code, which states it is illegal to smoke in an enclosed space at work: pot, tobacco, or otherwise.
There could also be civil suits filed against Musk for this act, as the various companies at which we works (SpaceX, Tesla, etc.) may have a company policy against drug use, especially SpaceX, since it works directly with the federal government on highly sensitive and confidential matters.
Bottom line -- if you want to make a video smoking pot and upload it to YouTube, go ahead, especially if you are in your own home in California. But you do expose yourself to some risky situations. You may not be thrown in jail over it, but it could be used against you as evidence in another legal matter. And, of course, the court of public opinion is always judging.
If you have been hassled by your employer for a video of you smoking marijuana on YouTube, call an experienced local employment lawyer, who can discuss your case with you and offer you sound advice on your rights and remedies.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.