Speed Limit

By Matthew Stannard, MotherJones.com. Posted May 9, 2000.

Say you've got a personal Web site. If you're an appreciator of the cultivation, politics, and history of the marijuana plant, you might think about linking to www.4thc.com, a Canadian site that bills itself as the "complete online source for Marijuana vaporizers, pipes, bongs, waterpipes, pot culture and paraphernalia."

Think again.

If a bill passed by the United States Senate last year becomes law, it will soon be illegal to link to a page such as www.4thc.com with the "intent to facilitate or promote" its business.

Depending on a federal prosecutor's interpretation of "intent," that could even make posting this article on the Web a federal crime.

It's one of the more disturbing effects of the Methamphetamine Anti-Proliferation Act of 1999. The bill, by Sen. John Ashcroft, R-Mo., is aimed at stopping the spread of crank. But it also has publishers, civil libertarians, and drug reformers arming for battle over free-speech rights.

"There's just no question there's a First Amendment issue," said Richard Boire, a California attorney and director of the Center for Cognitive Liberty and Ethics. "You're essentially getting into mind-policing."

As the title implies, the bill was designed to fight the spread of methamphetamine -- a goal so popular that liberal Sen. Dianne Feinstein, D-Calif., joined with her conservative sometimes-rival, Sen. Orrin Hatch, R-Utah, in writing one of the legislation's crucial sections.

Now awaiting action on a similar version in the House, the bill stiffens penalties for meth makers and includes money for busting labs and treating crank addicts. But it also tackles one of the knottier roots of the crank problem: recipies for do-it-yourself methamphetamine posted to the World Wide Web.

Such recipes are all over the Internet; some explain how to extract ephedrine from cold medicine, while others describe how to set up a basic lab. Still others exist as electronic protestors against the Ashcroft bill itself. Law enforcement officials blame the online recipies for a rise in crank labs. Drug Enforcement Administration officials busted 1,627 labs in 1998, a number that has doubled over the past decade.

In California, officials see even more action: They shut down over 2,000 labs in 1999 alone. In fact, so much meth is brewed in California that the state exports the drug to the rest of the nation. As many as one-third of all labs busted by state officials come complete with a cookbook printed off the Web.

"Part of the reason manufacture of meth has exploded in this country is the Internet," said Ron Gravitt, clandestine lab coordinator for the state's Bureau of Narcotic Enforcement. "People that did not have the formulas now have them."

The proposed law aims to combat the problem in two ways. One attacks crank kits and users' tools, expanding the current ban on advertising drugs or drug paraphenalia to include "indirect" advertising, such as linking to sites that have such ads.

Officials of Internet service providers who fail to yank violating sites within 48 hours of being warned by authorities could face up to three years in prison if the bill becomes law.

The bill's other prong -- authored by Feinstein and Hatch -- is even simpler. It bans distributing, by any means, information on manufacturing any controlled substance -- if you intend or know that the person receiving the information intends to use the information to break federal law.

Critics call that censorship, a term Feinstein's people hotly reject.

"If you have people out there that are teaching people to do it with the intent that a crime be committed, (Feinstein) doesn't think that should be protected," said David Hantman, Feinstein's chief counsel. "You can't shout fire in a crowded theater, and you shouldn't be able to teach somebody how to commit a federal crime, either."

The language banning the distribution of information intended to help someone break federal law was copied from an earlier Feinstein bill targeting Internet bomb-making instructions. That language was ruled constitutional by the Department of Justice, although a test case has yet to hit the courts. As a result, many critics of the new bill say they are certain it will become law.

But the meth bill goes a step further than the bomb-making law, barring people from distributing drug manufacturing information if they know somebody else intends to use it to break federal law, even if the provider doesn't intend for them to do so. That's a lot trickier, said Marvin Johnson, legislative counsel for the American Civil Liberties Union -- and it might not work.

"There's a very good First Amendment action arising out of that," Johnson said. "If I publish a book that says 'this is how you make methamphetamine,' I know that somebody is going to use that. That doesn't mean that I have the intention that you use it, but I'm putting the information out there. Am I now liable simply because I put the information out there?"

That question has drug reformers, civil libertarians, and publishers -- online and off -- frantically networking and packing war chests to stop the meth act or, failing that, to challenge it in court.

Much of that effort, ironically, is taking place via the Internet.

"The government has no business placing blanket prohibitions on drugs in the first place, and certainly has no business trying to restrict information concerning drugs, no matter what medium is used to transmit that information," emailed James Farrell, a director of the Lycaeum, an Internet drug metasite.

"Who judges 'intent' and 'knowledge,' and according to what standards?" Farrell wrote. "Our intent in providing drug information is not to help people break the law, nor do we have specific knowledge of people using our information to break the law -- and even if we did, information on the Web is not targeted (to any specific individual)."

Especially active in the battle against the bill have been medicinal marijuana enthusiasts, many of whom are confident the law -- which bans distributing information on manufacturing any drug, not just meth -- is an attempt to block pro-pot debate on the Net. Some of them lobbied in February for an exception in the bill for online discussions of medicinal marijuana.

"I said, 'Hey, do you realize this would apply to information regarding medical marijuana? Don't you realize medical marijuana is legal in California?'" said Dale Gieringer, California coordinator for the National Organization for the Reform of Marijuana Laws. But when he posed that question to Feinstein's staffers, Gieringer said, he was told "she was comfortable with the language as it stood."

Feinstein's legal staff denies the bill was created to target medicinal marijuana sites, noting Feinstein successfully pushed for changes in the bill's drafts so it focused on drug manufacture, not drug use. The bill's intent clause will probably keep prosecutors from becoming overzealous in any case, they say -- assuming the bill even becomes law as-is.

"We're still listening to comments from individuals and others," Hantman said. "She's certainly open to future changes."

That's not good enough for longtime medicinal cannabis advocate Peter McWilliams, publisher of the online Medical Marijuana Magazine and the online book "How To Grow Medical Marijuana."

McWilliams has already spent time in federal court over his advocacy of medicinal pot -- in November, he pleaded guilty in federal court to growing thousands of marijuana plants and selling the drug after a judge barred him from using California's recently passed medical-marijuana ballot initiative as a defense.

If the meth bill passes, McWilliams said he would remove much of the content of his sites rather than face more trouble.

"I'm obviously going to have to take my book off the market," McWilliams said. "The First Amendment is now destroyed."

This article originally appeared on the MoJo Wire, Mother Jones magazine's online sister publication.

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