Sign-on Letter to the House on the "Methamphetamine Anti-Proliferation Act of 1999"
On behalf of the undersigned organizations we urge you to vote against H.R. 2987 or the substitute amendment S. 486, the "Methamphetamine Anti-Proliferation Act of 1999." We oppose this bill because various provisions violate the First Amendment.
Section 203 (a) prohibits direct or "indirect" advertising of Schedule 1 drugs or drug paraphernalia. The bill does not adequately define "indirect" advertising. What constitutes "indirect advertising" is therefore left up to interpretation by law enforcement officers, and is subject to a First Amendment challenge for vagueness.
Laws are supposed to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford (1972). The prohibition of vague laws is stringently applied when speech is at stake. Ambiguity tends to have a chilling effect on speech, causing speakers to "steer far wider of the unlawful zone" than if the boundaries were clearly marked. Failure to clearly define when speech transgresses the regulation or law will unconstitutionally force people to conform their speech to "that which is unquestionably safe." Baggett v. Bullitt (1964). This is antithetic to a system of free speech.
The original version of H.R. 2987 defined "indirect advertising" as prohibiting a person from "linking to" a site that advertises drugs or paraphernalia. The nature of the Internet is that sites are constantly changing. A person can link to a site today that is not objectionable, and the owner of the site could change it overnight to one that is objectionable. This provision will have the effect of chilling the process of hypertext linking, one of the main reasons why consumers use the World Wide Web. Web site owners will forego linking to sites in order to avoid government scrutiny.
Notice and Take Down Responsibility
This provision allows the Attorney General, the Administrator of the Drug Enforcement Administration, or a United States Attorney to send a written notice to an Internet Service Provider (ISP) that a particular online site residing on the computer server is being used to directly or indirectly advertise drugs or paraphernalia. Upon receiving the notice, the ISP must remove or disable access to the matter residing at that online site that allegedly violates this section. Failure to do so shall be deemed as "knowledge" that the ISP knowingly permits its server to be used to engage in prohibited advertising.
This provision does not provide due process to the person who operates the site. The government is not required to prove that a crime has occurred, or even to get a warrant, before it has the authority to require that information be removed. Granting such summary powers to law enforcement is inconsistent with all notions of due process, free speech, and fair play, and should not be condoned by Congress.
Prohibition Against Teaching or Distributing Information
Section 205 prohibits "teaching or demonstrating information, by any means, pertaining to, in whole or in part, the manufacture of a controlled substance." Subsection (a)(A) prohibits dissemination of this information to anyone with the intent that the information be used for, or in furtherance of a federal crime. Subsection (a)(B) prohibits this information from being distributed to any person, knowing that person intends to use the information to commit a federal crime.
In order to prove a violation of this provision the government will need to prove intent. In order to prove intent, the government will likely impinge on First Amendment protected activity to prove its case. For example, suppose you spoke about your beliefs that drugs should be legalized. The espousing of those beliefs is protected under the First Amendment. Now suppose you have posted information on your website that discusses marijuana production for those in states allowing the use of medicinal marijuana. The government will now use your First Amendment protected speech (advocacy of drug legalization) as the intent that the information be used to violate Federal law.
This provision would likely be held unconstitutional because the Supreme Court has held that the First Amendment protects even advocacy of illegal actions. Brandenburg v. Ohio (1969). Regulation of such speech is constitutional only where (1) it is intended to provoke imminent illegal action that (2) is likely to occur. Application of this law to books or the Internet would likely fail the "imminence" requirement, because both decrease the intimacy of the communication.
Another ground for striking the provision is that once information is in the public domain, the court cannot constitutionally restrain its dissemination. Florida Star v. B.J.F. (1989). The information being prohibited is already in the public domain. Information about making methamphetamine has been available since approximately 1925, and is available in virtually any chemistry text.
The Prohibition of Dissemination of Information "In Whole or In Part"
Section 205 restricts dissemination of information pertaining to, "in whole or in part" the manufacture of a controlled substance. How little of a part will subject you to liability? If use of a Bunsen burner is necessary for producing a particular type of controlled substance, is teaching its proper use a "part of" the knowledge required, and would you be subject to liability for teaching someone that information? This provision suffers from the same vagueness problem discussed above.
Any time the Government tells us it is illegal to discuss or disseminate information, we should all be wary. As Justice Brandeis stated in 1928: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent."
This bill is a misguided attempt to address a social problem by stifling speech, and Congress should reject it.
American Civil Liberties Union
American Booksellers Foundation for Free Expression
Electronic Freedom Foundation
Computer Professionals for Social Responsibility
Randall Lyman, Co-Chair
Freedom of Information Committee
PEN American Center