Free Drugs or Free Speech?
A canceled Billings rock concert could provoke an early challenge to new national anti-drug legislation.
A May 30 fund-raising concert for the National Organization for the Reform of Marijuana Laws was canceled as bands were setting up for the show. The cancellation followed a warning from a federal drug agent that the Eagles Lodge could be fined up to $250,000 if illegal drugs were used at the event.
The day before, the concert promoter was jailed for a probation violation. The organizer, Adam Jones, said afterward that he would drop his activities in the NORML chapter at Montana State University-Billings and in Students for Sensible Drug Policy as a result of the incident.
The $250,000 penalty was included in the Illicit Drug Anti-Proliferation Act of 2003, which President Bush signed into law on April 30. The legislation was attached to the popular Child Abduction Prevention Act, better known as the Amber Alert bill.
The bill's sponsor was Sen. Joe Biden, D-Del., who has said that it was aimed at those who knowingly profit from illegal drug use at events they sponsor, especially at raves, where participants often consume the drug Ecstasy. But critics say that the bill is so vaguely worded that it could force innocent bar owners and event sponsors out of business.
Some critics also have worried that the law could be used to squelch political activity. Gay rights groups, for example, frequently use concerts and raves as fund-raising events. The NORML benefit here was intended to raise money to place a medical marijuana initiative on the ballot in 2004.
The Eagles Lodge manager, who asked to be identified only as Kelly, said that the Billings agent who approached her the day of the concert didn't make threats but did warn of possible consequences.
"He was polite and was just explaining things," she said. She said she referred the matter to lodge trustees, who consulted an attorney before deciding to cancel the concert. Phone calls to Trustee Roger Diehl were not returned Friday or over the weekend.
News of the Billings concert cancellation spread rapidly on the Internet last week and even rated a link on Glenn Reynold's popular InstaPundit web log site. Mr. Reynolds, a University of Tennessee law professor with libertarian leanings, has argued that Biden's bill, once known as the RAVE Act, was defective legislation.
"I blame Joe Biden -- for sneaking through this abomination -- and [Attorney General John] Ashcroft's Justice Department, for applying it this way," Mr. Reynolds wrote about the Billings case. "This legislation has always been part of a culture war, not an anti-drug effort, and this application just makes that crystal clear for anyone who hadn't noticed."
Agent Defends Action
Jeff Sweetin, special agent in charge of the Rocky Mountain Division of the Drug Enforcement Agency, said that the concert's fund-raising goal had "very little bearing" on the decision to warn the Eagles Lodge about the event. But he said that he knew he would take heat for the cancellation.
"It certainly doesn't look very good," he acknowledged. But he said the DEA's goal was only to make sure that the Fraternal Order of the Eagles Lodge was aware of the risks the concert posed.
When told that the Eagles Lodge was a popular spot for alternative and punk rock concerts, Mr. Sweetin said the warning may not have been needed. But he said the DEA would have been negligent if it had ignored the concert and drug use had taken place.
"I'm a parent," he said. "I have kids. My kids have a right to be protected."
And he was unapologetic about the DEA's opposition to medical marijuana laws.
"A lot of their argument is based on emotion and lies," he said, adding, "No reputable medical person will tell you that smoked marijuana is medically effective."
John Masterson of Montana NORML in Missoula called the DEA's actions "heavy handed" and "coercive." Mr. Masterson said that he and other organizers of Missoula's annual Hemp Fest are looking carefully at how to handle this year's festival in light of the new law.
"That's not the America I want to live in," he said.
Bill Piper of the Drug Policy Alliance in Washington, D.C., said that Sen. Biden's bill made two key changes in the so-called Crack House Act, which was designed for prosecution of people who operate drug houses. Sen. Biden's bill extended the crack house provisions to apply to "temporary" uses, which means it could affect concerts and other one-time events. And it added civil penalties, which require a lower standard of evidence and don't guarantee jury trials.
"Once it becomes easy for them to fine people, they don't even have to bother to fine people," Mr. Piper said.
In an article that appeared in the New York Times on the day the Billings concert was canceled, Jacob Sullum of Reason magazine said that the Biden bill actually could make events such as raves more dangerous. Commonsense steps to make raves safer, such as providing plenty of water and "chill-out" rooms, could be seen as indications that the venue owner tolerated illegal drug use, he wrote.
While the law applies only to those who "knowingly and intentionally" allow illegal drugs, Mr. Piper said that courts have construed that to apply to cases where owners were unaware of drug use and may even have taken steps to prevent it.
"You can't control every single thing," he said. "They can't even keep drugs out of prison."
Drug-reform advocates also warned that the bill could be used to stifle political activity, Mr. Piper said. According to Mr. Piper, Sen. Biden has said that the law was not intended to restrict legitimate business owners or free speech.
But he said the senator's intentions don't matter: It is the wording of the law that causes problems. The deficiencies remained in the bill, rather than being cleaned up in committee, because it was attached to a bill that both houses strongly supported, he said.
Mr. Piper said the Billings case was the first he had heard about since the new law took effect. Word about other cases may not be getting out, he said, because many groups are now afraid to host events.
"This case," he said, "seems quite startling."
Activists Plan Strategy
According to the website of the Drug Reform Coordination Network, activists were organizing last week to consider how to deal with the case. NORML Foundation head Allen St. Pierre told DRCNet that the Billings case appeared to be the first application of the RAVE Act and he called it a "very scary precedent."
"Preemptively shutting down a First Amendment-protected event is something that just doesn't happen in America," he reportedly said. "This is absolutely what we feared and predicted would happen if the RAVE Act passed. Isn't Montana known for being resistant to federal encroachment? This should make them mighty uneasy."
Scott Crichton of the Montana American Civil Liberties Union returned a phone call on Sunday from Washington, D.C., where he is attending a conference. He said he had received an e-mail about the case but wasn't familiar enough with the details to comment.
Billings bands apparently took the cancellation in stride. One of the scheduled bands, ENDever, sent this e-mail to those on its distribution list: "Please do not let the recent events at the F.O.E. discourage you from coming out to our shows, or any shows for that matter. We will STILL be playing at the F.O.E. it was just that the show in question was a bit too liberal for Billings."
Mr. Jones acknowledged that his drug conviction may not have made him the best representative of NORML in Billings. He said he has been on probation for a year and a half after he was caught with one-half gram of psilocybin mushrooms, enough for a felony charge. He said his probation officer showed up at his house on Thursday, searched the premises and arrested him for failing to report a change in supervisors at his job. He remained in jail until Sunday, he said, and initially failed a urinalysis test. But the test proved to have been inaccurate, he said.
Mr. Jones said that he had been incarcerated one other time for violating probation: He traveled to Helena without permission to testify in favor of a medical marijuana bill.
"The implications of the RAVE Act are scary," he said. "Obviously, our First Amendment rights have been thrown out the window."
He said he didn't blame the Eagles Lodge.
"In no way whatsoever do I hold anything against the Eagles Lodge," he said. "$250,000 is a very scary number."
Kelly, the lodge manager, also defended the actions of trustees.
"They do a lot of good things for a lot of people ... but they have to do what's best for their lodge," she said.