MAKING WAR ON FREE SPEECH

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.