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Can Zach Galifianakis Go to Jail for Smoking Joint on TV?

Mon., Nov. 1, 2010 4:03 PM PDT by Leslie Gornstein

HBO

Did Zach Galifianakis really light up a joint on TV? Is he going to jail?
—Loser, via the inbox

Whoa, there, Sparky. Let's get the facts down first, including what, if any, possible crimes the Hangover actor may have committed during a visit last week to Real Time with Bill Maher.

During one segment dealing with California's controversial Prop 19, Galifianakis did appear to blaze up an actual marijuana cigarette. But here's what we've learned since then...

According to a statement issued to E! News by Maher's publicist, Cece Yorke, the substance was not pot, but rather an unspecified "prop."

Then again, this info-nugget also came from, well, a publicist—a profession not exactly known for consistent honesty.

So for the sake of your question only, let's say the joint was real.

I spoke with both the Los Angeles Police Department and the local district attorney, and both offices were less than eager to go slap Galifianakis in cuffs.

"Anybody could say they were smoking marijuana," a police spokeswoman tells me. "But we would need to see it firsthand, see the evidence for itself."

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And even if the actor were arrested and put in front of a jury, there's a chance that nothing much would happen.

"There have been examples in California and elsewhere of defendants being acquitted (or more often juries being hung) in drug possession cases, where jury nullification seems to have been at play," trial consultant Edward Schwartz says. "What makes Zach G.'s case somewhat more interesting is that he might be able to make a legitimate First Amendment argument."

Yes. That First Amendment.

"It's not quite Rosa Parks sitting in the front of the bus," Schwartz muses, "but he could argue that his 'protest' should be protected as free speech, especially if it is overtly political speech. The argument is probably a little silly, but he only needs to get permission from a judge to make it."

Well and good then.

One final thought:

If Galifianakis did indeed whip out a real joint, he needs help, and it has nothing to do with pot. A roach? Really? Doesn't that child know anything about the Volcano Vaporizer?