Karen Tandy, expected to be confirmed soon as the new head of the Drug Enforcement Administration (DEA), did not face many tough questions when her nomination was considered by the Senate Judiciary Committee. One of the few exceptions came from Sen. Joseph Biden (D-Del.), who asked her about a problem he was instrumental in creating.
Biden referred to an incident in Billings, Montana, on May 30, when a DEA agent brought a copy of the Illicit Drug Anti-Proliferation Act to the local Eagles Lodge. The agent warned the lodge's manager that a fund-raising concert sponsored by the National Organization for the Reform of Marijuana Laws and Students for a Sensible Drug Policy might violate the law if anyone attending the event lit up a joint.
The law, which Biden sponsored, makes it a federal crime to "knowingly and intentionally" make a place available "for the purpose of manufacturing, distributing, or using any controlled substance." Violators are subject to $250,000 or more in civil penalties, a criminal fine of up to $500,000, and a prison sentence of up to 20 years.
The threat of these penalties "freaked me out," the Eagles Lodge manager told the Drug Reform Coordination Network. She said the DEA agent "didn't tell us we couldn't have the event, but he showed me the law and told us what could happen if we did. I talked to our trustees, they talked to our lawyers, and our lawyers said not to risk it, so we canceled."
Biden pronounced himself "troubled" by this application of his law. He pressed Tandy to explain how she planned to "reassure people who may be skeptical of my legislation that it will not be enforced in a manner that has a chilling effect on free speech."
The way Biden posed the question was telling: For both the senator and the DEA, the key thing is not so much to protect First Amendment rights as to "reassure people who may be skeptical" about his broadly worded, draconian statute. But for anyone who is concerned about freedom of speech and the rule of law, there are ample grounds for skepticism.
When the legislation was debated last year, critics argued that it could be applied to any event that attracts drug users, including not only raves (Biden's main target) but rock concerts, political rallies, even backyard barbecues if guests happened to smoke pot. The objections were so loud that the bill, then called the Reducing Americans' Vulnerability to Ecstasy (RAVE) Act, never came up for a vote.
This year Biden avoided debate by introducing his legislation under a new name and quietly attaching it to a wildly popular bill establishing a national alert system for abducted children, which was signed by President Bush on April 30. Barely a month later, critics of the legislation were proven right by the incident in Billings.
Jeff Sweetin, special agent in charge of the DEA's Rocky Mountain Division, defended the warning to the Eagles Lodge in a June interview with The Billings Outpost. But he conceded that "it certainly doesn't look very good."
Attempting to improve appearances, the DEA announced on June 20 that it is "committed to responsible enforcement of this law, which will shield innocent businesses from criminal liability for incidental drug use by patrons." It referred to "updated guidance" and a new requirement for "Headquarters review of proposed enforcement activity" to "ensure that all DEA activity under the Act complies with its terms and intent and with the First Amendment."
Tandy cited that announcement in response to Biden's questions, but it's not very reassuring. "Innocent businesses" that already had to guess at the meaning of "knowingly and intentionally"—a "high legal standard" according to Biden, but not according to that DEA agent in Billings—now have to wonder when drug use counts as "incidental."
That kind of uncertainty is the essence of a chilling effect. For anxious venue owners, the question is not whether the government could impose a civil fine or obtain a conviction that would be upheld on appeal; the question is whether a federal agent might think it's worth a shot.
There is a broader issue here than freedom of speech. The rule of law requires that people be given adequate notice of which actions will get them into trouble. In seeking to hold property owners and managers liable for other people's drug use, Biden's law fails that basic test.