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Drug war reformers suspect they are the true targets, and this week they're stepping up lobbying efforts against S.R. 486. Angry e-mails are on their way to Washington, and several sites devoted to trashing the bill have been launched. But the protests may be in vain.
"We want to make it difficult for people to produce illegal substances," explains Chris Cannon, the House sponsor of the Senate version introduced by Dianne Feinstein and Orrin Hatch. "We are hoping to have hearings in March, and pass the bill this year, sooner rather than later."
It should not be overly difficult. The Methamphetamine Anti-Proliferation Act, as it's called, contains several politically attractive clauses that portend its passage into law. Drug warriors love the additional narcocops it sends to the front, and the way it stiffens sentences for methamphetamine distributors and cooks. But while these are standard measures in the war on drugs, zero tolerance for pro-drug data expands the battlefield from deeds to words.
The bill makes it illegal "to teach or demonstrate the manufacture of a controlled substance, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of a controlled substance" if a prosecutor can prove the info figured in a crime.
That's a mandate as big and broad as Montana sky. It covers information about safe dosage levels of illegal drugs, which combinations pose dangers, and which do not. It covers explanations about how to use marijuana to fight nausea and glaucoma. It covers tip sheets on how to harvest opium from poppies, identify psilocybin mushrooms in the wild, or extract codeine from Tylenol 3. In short, anything that could possibly be "intended" to encourage drug use.
Not only that, but under the bill, advertising any information that could lead to the sale of drug paraphernalia counts as a felony. So if you post the address of a head shop to a newsgroup, or the e-mail address of someone who makes bongs as a hobby, it's a crime punishable by three years in jail, even though head shops themselves remain legal.
There's a strong possibility that the law will shut down an entire class of drug advocacy. Already, publishers and activists are preparing to pull in their wares, or go overseas. Mark Greer, the executive director of Drug Sense, a nonprofit dedicated to accurate drug policy information, fears his archive of 30,000 clippings regarding drug policy could be the target of a federal suit brought by a D.A. on a scalp hunt to prove the new law works.
"Given the vague and inclusive interpretation of federal conspiracy laws, almost any information about criminalized drugs and any dissent against existing drug laws could be construed by federal enforcers as furthering drug crimes," says Greer. "Any anti drug war Web site would be shut down directly, or indirectly because Internet service providers, fearing prosecution, would refuse to host such sites." Greer is preparing for this eventuality by exploring steps to move his site offshore.
But even if he relocates to a cyberdomain beyond America's jurisdiction, anyone linking to his site from within the States could be punished under the proposed law. "The main thrust of this law is toward the Internet," explains Marv Johnson, an ACLU attorney specializing in the legislation. The Internet's free flow of information "has Congress running scared." And when it comes to drug paraphernalia, Congress is running far ahead of the First Amendment. Under this bill, even linking to a paraphernalia site is illegal.
But in the final analysis, it's less the prosecutions than the censoring effect this law will have that worries civil libertarians. "It's clearly going to chill publishing," says Johnson, and he's not exaggerating.
The American Booksellers Foundation for Free Expression believes bookstores will be forced to withdraw certain drug titles, according to its president, Chris Finan.
Over at Ronin Publishing, one of the leading publishers of drug titles, tension is in the air. "Will the police storm into my house?" asks Beverly Potter, the company's president. She fears the law will criminalize every aspect of the book industry that deals with drug literature. "Every printer, every truck driver delivering these books will be a criminal."
"If it passes, we would probably pull all of our drug books, since I am unwilling to spend several hundred thousand dollars that I don't have to prove that my 'intent' satisfies Big Brother," says Mike Hoy, president of the radical publishing house Loompanics Unlimited. "This bill is the single most un-American thing I have ever seen."
Perhaps. But under the Clinton administration, it's as American as apple pie. Last August, Clinton set the precedent for the methamphetamine act by signing a law (also Feinstein's handiwork) making it a felony to disseminate instructions for making bombs, destructive devices, or weapons of mass destruction. And while that move came in response to the Oklahoma City bombing, its effects are still being felt. Paladin Press no longer publishes any material involving explosives recipes, and Loompanics doesn't sell books exclusively about explosives. On the Internet, where bomb-making instructions were once abundant, there is now a void.
If this drug bill passes, the most immediate and concrete impact will be on the two dozen or so sites which currently sell drug paraphernalia, from bongs to paperand the countless places that link to them. These sites will become illegal, even though brick and mortar head shops will still be able to operate within the letter of the law.
The deeper question, of course, is whether S.R. 486 violates the First Amendment. Representative Chris Cannon, the House sponsor, is unconcerned. "We have worked a lot with the attorneys at the Department of Justice; we have been pretty thorough there," he says, adding, "We don't even expect a court challenge."
That may come as news to the ACLU, but Cannon's confidence is based on strange but safe legal ground, territory already strewn with the bones of another Paladin project: Hit Man, a murder how-to book. After a killer-for-hire allegedly acted on the book's step-by-step instructions, the victims' families sued Paladin. The courts allowed the lawsuit to go forward, and Paladin settled for a reported $5 million. The ruling that the lawsuit could proceed is being cited by the Louisiana Court of Appeals in the legal action against Oliver Stone over Natural Born Killers, which allegedly incited two 18-year-olds to go on a violent crime spree. And it sets a precedent for holding publishers accountable that could make this bill legit in the eyes of the courts.
From the ACLU's perspective, Johnson thinks that "in theory" prosecutors would have a hard time proving "intent." In a case, they would have to prove that a publisher knew beforehand that some reader would find in a book the motivation for a crime. Nevertheless, the results of the Hit Man case are troubling, he says, and the future of this area of law is still undetermined.
If the Meth Act becomes law, Johnson says the ACLU's likely course of action will not be to challenge the bill immediately, but rather to save its attack until someone is prosecuted, and then defend that person. Any volunteers?