THE ANTI-METH BILL

THE SO-CALLED Methamphetamine Anti-Proliferation Act has been burrowing its
way through Congress without attracting much public attention. Some
sunshine is called for. The Senate passed the bill last year both as part
of a bankruptcy reform bill and as a stand-alone measure. Both parties have
supported it, and the bankruptcy bill is now pending in a conference
committee. Two provisions that criminalize the dissemination of information
about drugs may violate constitutional protections of free speech.

The first makes it a crime to "directly or indirectly advertise for sale"
drugs or drug paraphernalia. When such advertising is in electronic
form--such as on a Web page--the government could order the Internet
service provider to remove it. But what is "indirect" advertising? The
category is so vague as to threaten legitimate speech. For example, the
provision could plausibly be read to prevent a group advocating the
legalization of medical marijuana from providing a hypertext link to a site
associated with a drug buyers club for AIDS patients. That can't be
constitutional.

The other provision makes it a felony to distribute information about the
manufacturing of controlled substances intending that the information will
be used to commit a crime or knowing that a recipient means to misuse it.
This section, modeled on legislation prohibiting the distribution of
bomb-making information, also seems overly broad, no matter how
well-intentioned. The mere dissemination of information, especially without
specific intent to further crime, seems within the bounds of free speech
protections. Even where the publisher does intend that the information will
be used for crimes, the First Amendment may still protect the disclosure in
many instances.

The methamphetamines bill has improved in conference with the removal of a
troubling section that would have expanded federal authority to conduct
secret searches. But more work needs to be done.