Civil liberties advocates at WorldNetDaily and elsewhere can be
pleased and grateful that a certain amount of lobbying and agitation
seems to have gotten the “sneak and peek” search without notification
provisions out of the Methamphetamine Anti-Proliferation Act (S.
486/H.R. 2987). But the bill, which passed the Senate unanimously, still
contains limitations on free speech that are breathtaking in
their breadth.
The shocking thing is that such an effort to control speech could
have been introduced and passed through the Senate so casually, as if
the First Amendment were some sort of historic artifact to which
legislators need pay no never-mind. Not to mention that few interest
groups beyond the hard-core drug press seem to have paid more than
casual attention to the proposed crackdown, and the mainstream press
seemed not the least bit interested even in reporting on it, let alone
viewing it askance.
S. 486 includes a provision that makes it a federal crime “to teach
or demonstrate the manufacturing 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.” Wow.
The declared intent of the provision is to prevent the publication on
the Internet of instructions on how to make methamphetamine. But the
language is so broad that it could criminalize almost any published
speech about illegal drugs. Perhaps including some passages from my
forthcoming book on the politics of medical marijuana, which includes
alternatives to smoking that I have seen demonstrated with patients.
Could it apply to advice from a doctor who writes in a newsletter or
goes on the radio to warn about how certain other substances interact
with illegal drugs? Even if the intention of the doctor is to discourage
the use of illegal drugs by pointing out their dangers, could he get in
trouble if he talks or writes about the dosages at which a drug becomes
especially dangerous (perhaps implying to censorious souls that usage at
a lower dose is hunky-dory?) or explains how the use of an illegal drug
becomes even more dangerous in combination with another drug?
The Controlled Substances Act, one should remember, covers not only
drugs on Schedule I, which it is illegal under federal law for a doctor
to prescribe or for anyone to use. It also covers common prescription
drugs like Valium and Tylenol with codeine. Could it become a federal
crime to talk or write about how they are manufactured?
Marijuana is a controlled substance, stubbornly and unscientifically
kept on Schedule I by federal drug warriors. Yet voters in California
and six other states — and the state legislature in Hawaii — have
authorized its use by patients with a recommendation from a licensed
physician. None of those laws has been challenged in federal court by
the federal government or anybody else, so presumably they are valid as
state laws, and thousands of patients are now using cannabis.
Yet, as Barry McCaffrey and others keep reminding us any use of
marijuana is still illegal under federal law. Could this bill make it a
federal crime to give advice to patients as to how they can minimize the
risks involved in using a medicine declared legitimate in six states
with more than 20 percent of the nation’s population? If the
words “manufacture or use of a controlled substance” mean anything, it
just might. Heck, it might make those voluminous information leaflets
that come packed with many prescription medicines, explaining how they
should be used and warning of side effects and interactions with other
drugs in great detail a federal crime.
Although the ACLU and the American Booksellers Association saw some
dangers and lobbied against the speech infringements, hardly anybody
else paid much attention. And mainstream publishers might not be at much
risk. But publishers on the fringes — the very people the First
Amendment was designed to protect — might be very much at risk. And
there’s little question that a limitation on speech or writing about
manufacture and use would spill over into restrictions on political
speech as well.
High Times magazine celebrates marijuana and includes user tips on
how to grow and process it, along with numerous articles about the
insidiousness of the drug war. But it might be that the “consumer tips”
are the main reason many people buy the magazine. If those were excised,
would the magazine — which has bankrolled a perfectly legal
and legitimate effort to get marijuana rescheduled that is currently
bouncing around in the caves of the bureaucracy and has done some of the
most solid reporting on abuses of power by government agents to be found
— be able to survive economically?
That such a sweeping limitation on free speech, such a clear and
obvious violation of the First Amendment could pass the Senate
unanimously and evoke barely a news story, let alone a murmur of dissent
from the “respectable” media is another example of just how pervasive
the Drug War Exception to the Bill of Rights has become. This
particular assault on the Fourth Amendment might have been halted (or
perhaps just stalled), but demands from law enforcement for ways to
carry out drug war have already driven gaping holes through our Fourth
Amendment protections against unwarranted search and seizure.
The Fifth Amendment requirement that property can only be taken by
the government through due process and with just compensation has been
made a joke with federal asset forfeiture laws, which even after reform
are so broad that peoples’ property can be seized without them ever
having been convicted of a crime or even formally charged with one.
There’s a reason such violations of constitutional rights are
virtually inevitable so long as the federal government thinks it has to
conduct a War on Drugs. Use of drugs is almost always a private act done
in private places, as are sales of drugs and the laws increase the
incentives to make them as private as possible. When the “crime” of
selling a drug takes place there is almost never a complaining victim,
as in a burglary, to go to the police, provide as much information as
possible to lead to the arrest of the perpetrator, and to hound them if
they don’t do anything about it.
In order even to make an arrest on a drug crime, therefore, police
must find ways to penetrate private places through use of undercover
agents, sting operations, no-knock searches and “dynamic entries” which
have given federal agents plenty of practice at the kinds of skills they
needed to seize young Elian Gonzalez.
None of this is consistent with the system of recognized individual
rights — rights to be protected rather than constantly violated by the
government — that was contemplated by the founders. And, indeed, I
haven’t found anybody who can tell me where, in a government of
enumerated (and therefore limited) powers, the U.S. Constitution gives
the federal government the legitimate power to ban the possession of
certain substances.
In the early part of the 20th century there was enough residual
understanding of and respect for the constitution that everybody
acknowledged that a constitutional amendment would be required to
prohibit beverage alcohol. Why isn’t an amendment required to prohibit
marijuana?
The U.S. Constitution never contemplated that the federal government
would ever have the power to legislate prohibition against drugs or
other substances (though some states, depending on particular
constitutional provisions, might have such authority). It’s no wonder,
then, that to conduct the War on Drugs requires that various provisions
of the constitution be shredded or reduced to ineffectiveness.