Tommy Chong says his colorful glass pipes, featured at a Hollywood exhibit last fall, qualify as art. The Justice Department says they qualify as illegal drug paraphernalia.
There's little question about who is going to win this argument. Federal law prohibits the sale of any product that is "primarily intended or designed for use" with illegal drugs, and the Supreme Court has ruled that the determination should be based on "objective" evidence of "an item's likely use." In practice, this means the person whose judgment matters is the prosecutor who doesn't buy that "For Tobacco Use Only" sign.
Chong's Los Angeles company was raided on February 24 as part of a nationwide sweep in which federal agents searched more than 100 homes and businesses and arrested 55 people (not including Chong). The operation highlighted the spectral quality of drug paraphernalia offenses, which exist only when the government decides to notice them. Targeted distributors complained that they had been operating in the open for years, assuming their disclaimers of illegal intent were enough to keep them on the right side of the law.
And perhaps they were, until John Ashcroft took over the Justice Department. Announcing the arrests, the attorney general proclaimed, "The illegal drug paraphernalia industry has invaded the homes of families across the country without their knowledge."
Although the thought of a bong-bearing hippie under every bed may keep Ashcroft awake at night, it's hard to see how seizing marijuana pipes can be expected to have any impact on drug use. As long as there are paper and aluminum foil, pot smokers will have ready alternatives.
Similarly, the proposed federal crackdown on raves seems unlikely to deter many MDMA users -- which does not mean it would have no impact. The Drug Policy Alliance warns that revived anti-rave legislation "could effectively ban live music and dancing, as well as any other event that might attract someone who would use drugs." The RAVE Act would hold venue owners responsible for drug use on their property even if they took steps to prevent it.
The war on drugs thus moves from illegal intoxicants to items and activities associated with them, from symbols to symbols of symbols. Soon Tommy Chong himself may be illegal.