Bongs Away!

How the crusade against drug paraphernalia punishes controversial speech

Jacob Sullum from the February 2009 issue

(Page 2 of 4)

At his sentencing in June 2006, Sil emphasized that he had not behaved like a criminal. “There was nothing clandestine about this operation,” he noted. “Nobody was hiding out in the bushes. This stuff is sold over the Internet.” Presiding U.S. District Judge Don Molloy expressed dismay at the case, suggesting that such prosecutions of legal-seeming enterprises undermine respect for the law. He sentenced the then-61-year-old retailer to six months of home arrest and two years of probation. “This case will have all the effectiveness of a single solitary snowflake falling on the bosom of the Potomac,” Molloy said. “I don’t think cases like this deter anyone.” U.S. Attorney Bill Mercer took a different view. “I am confident,” he declared in a press release, “this prosecution will deter others from engaging in the commercial distribution of drug paraphernalia in Montana.”

Molloy’s prediction proved to be more accurate. Operation Heads Up was supposed to put Montana retailers on notice that disclaimers and discretion were no longer enough to avoid prosecution for selling drug paraphernalia. To some extent, it worked: At least two Montana shops pulled glass pipes from their shelves after Sil’s conviction. But others continued selling them, including Zoo Town Glass, a hand-blown pipe shop that took over the very same space once occupied by Sil’s store.

‘Do-Drug Messages’

The roots of the campaign against drug paraphernalia lie in the anti-drug activism of parents who were alarmed by adolescent pot smoking in the late 1970s, the peak period for marijuana use by American teenagers. Those anxieties were echoed and amplified by anti-pot polemicists such as Peggy Mann, who between 1979 and 1981 published three widely read Reader’s Digest articles warning parents about the dangers of marijuana. Mann, whose work won an award from the National Federation of Parents for Drug-Free Youth, expanded those articles into the 1985 book Marijuana Alert, described in the foreword by first lady Nancy Reagan as “a true story about a drug that is taking America captive.” In Marijuana Alert, Mann identified paraphernalia sales as a major source of “do-drug messages,” along with peer pressure and rock music. She complained that “drug paraphernalia may be purchased by teenagers not only in headshops, but also in numerous record shops, boutiques, smoke shops, card shops, and novelty shops in posh suburban shopping malls.…In some areas, full-fledged headshops can be found only a few blocks away from the local high school.”

As with pornography, it was the in-your-face aspect of paraphernalia sales, especially in locations frequented by minors, that really upset people like Mann. Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML), recalls that “up until the late 1970s you could literally win a bong at the county fair.” Since selling drug paraphernalia was legal in most places, store owners did not post disclaimers or eject indiscreet customers. “There was no need to be self-conscious about it,” recalls Jon Gettman, a former NORML director who managed a shop called Earthworks in the Dupont Circle area of Washington, D.C., during the ’70s. Its slogan: “Everything You Need but the Weed.”

Such openness was intolerable to drug warriors, who saw themselves as fighting the libertinism of the ’60s counterculture. “We’re telling young people it’s against the law to use drugs yet we’re providing them with things to violate the law,” a Louisiana district attorney complained to UPI in 1981. UPI also quoted Harry Myers, the DEA attorney who in 1979 had written a model anti-paraphernalia act for states to adopt. “You can put drug education programs on TV until they outnumber cat food commercials,” Myers said. “But you can’t do that and still have legal [paraphernalia] sales. It sends a dual message to the kids.”

“Not in front of the kids!” quickly became a demand for complete prohibition. The first paraphernalia law to be considered by the U.S. Supreme Court, adopted by the Illinois town of Hoffman Estates in 1978, required paraphernalia dealers to obtain a license and refrain from selling to minors but permitted them to continue operating (albeit with recordkeeping requirements that might have intimidated customers). By the time the Supreme Court upheld the law in 1982, more than 20 states had passed versions of the DEA’s model statute, which bans products “used, intended for use, or designed for use” in consuming illegal drugs. Today every state has a drug paraphernalia ban except West Virginia, which requires a license.

The attorney for Hoffman Estates conceded the cultural nature of the anti-paraphernalia campaign, telling the Supreme Court during oral arguments, “We have a right to legislate against lifestyles.” Justice Thurgood Marshall, who wrote the majority opinion rejecting the argument that the town’s paraphernalia law was unconstitutionally vague, also dismissed a First Amendment claim. “The ordinance is expressly directed at commercial activity promoting or encouraging illegal drug use,” he wrote. “If that activity is deemed ‘speech,’ then it is speech proposing an illegal transaction, which a government may regulate or ban entirely.” Yet as evidence that the defendant, a record store called The Flipside, had violated the ordinance by selling drug paraphernalia without a license, Marshall noted that it had “displayed the magazine High Times and books entitled Marijuana Grower’s Guide, Children’s Garden of Grass, and The Pleasures of Cocaine, physically close to pipes and colored rolling papers.” He seemed untroubled by the prospect that a store could in effect be punished for selling material protected by the First Amendment, referring dismissively to “the theoretical possibility that the village will enforce its ordinance against a paper clip placed next to Rolling Stone magazine.”

Four year later, at the height of Ronald Reagan’s war on drugs, Congress banned products “primarily intended or designed for use” with illegal intoxicants. When the Supreme Court upheld the federal ban against a vagueness challenge in 1994, it interpreted the law as requiring an “objective” definition of paraphernalia, based on “a product’s likely use,” as opposed to a “subjective” definition, based on “the defendant’s state of mind.” Writing for the majority, Justice Harry Blackmun said it was not necessary to show “knowledge on the defendant’s part that a particular customer actually will use an item…with drugs. It is sufficient that the defendant be aware the customers in general are likely to use the merchandise with drugs.”

This standard is stricter than, say, the rule for hardware or software that can be used to make unauthorized copies of copyrighted material, under which selling the item is legal as long as there are substantial non-infringing uses for it. Robert Vaughn, a Nashville defense attorney specializing in drug paraphernalia cases, sums up the federal intent requirement for drug paraphernalia this way: “Did you intend to sell those items? Well, obviously [you did]. OK, we’ve got that intent to sell out of the way. ‘Now, ladies and gentlemen of the jury, look at these items we’re setting in front of you, and you decide whether or not they’re drug paraphernalia. And oh, by the way, how many of you remember your grandfather sitting on the porch rocker smoking from one of these four-foot-tall acrylic things?’ ”

‘For Tobacco Use Only’

The federal ban lists specific examples of drug paraphernalia, including “water pipes,” “carburetion tubes,” “smoking masks,” “electric pipes,” “chillums,” “chillers,” “wired cigarette papers,” and “metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens.” But it includes an exception for any item “traditionally intended for use with tobacco products.” In practice, then, the “objective” standard is often subjective, based on a prosecutor’s idea of what drug paraphernalia looks like. The same sort of thing happens in state cases, where courts consider an item’s appearance in judging its intended use.

It is easy to mock the transparent subterfuges of head shop owners who insist their merchandise is “for tobacco use only.” The satirical Comedy Central debate show Crossballs once featured a merchant who insisted with a straight face that “there are a lot of people in society who enjoy smoking tobacco in very elaborate ways.” Mary Beth Buchanan becomes audibly angry when she talks about “those absurd, disingenuous advertising statements that people who want to violate the law make when they try to sell this product that is clearly illegal.”

Still, paraphernalia bans do raise serious definitional issues. “Anything can have a dual use,” notes New Orleans defense attorney Bill Rittenberg. “There’s nothing that can be used as a smoking or snuff accessory for tobacco that can’t be used for marijuana.” While a giant plastic bong may seem like an obvious example of drug paraphernalia, people do use other sorts of water pipes, as well as dry pipes made from materials other than the conventional briar, meerschaum, or corncob, to smoke tobacco. Buchanan maintains that an item listed in the federal ban is illegal “regardless of what you do with it, regardless of whether some idiot actually goes and puts tobacco in it.” But that interpretation would make hookahs—water pipes traditionally used to smoke sweet, fruity tobacco mixtures—illegal. Even Buchanan concedes that rolling papers, which can be used to make cigarettes as well as joints, are not necessarily drug paraphernalia. The targets of Operation Pipe Dreams did not include any convenience stores that sold rolling papers, even though many of those end up wrapped around marijuana. Likewise, vaporizers, which are not listed in the federal ban, can be used with marijuana or with legal medicinal herbs (not to mention the fact that in California and 12 other states marijuana is a legal medicinal herb).

Law enforcement officials themselves can have trouble telling the difference between legitimate smoking accessories and illegal drug paraphernalia, as illustrated by the travails of the Smoke Signals Pipe and Tobacco Shop in Dover, New Hampshire. Police first raided the store in October 2001, seizing various items they identified as drug paraphernalia. The store’s manager, Susan Hargrove, ultimately pleaded guilty to a single charge of selling drug paraphernalia, resulting in a suspended $1,000 fine. As part of the plea agreement, the government returned most of the seized merchandise, including glass pipes, a glass chillum, various water pipes, and metal one-hitters (small, narrow pipes), saying they were OK to sell.

Comments

bob42|1.16.09 @ 12:30PM|#

Now that the government has successfully wasted a few buckets of OUR money putting these guys out of business, I have to wonder if it will bail them out.

In other words, is Wizzinator "too big to fail?"

|1.16.09 @ 12:37PM|#

The fucking government is bleeding red ink and this is how Mary Beth (what kind of adult women would choose that moniker anyway?) Buchanan wastes money on this effin' nonsense.

Four more days you useless public parasite.

Paul|1.16.09 @ 12:50PM|#

Some things are just bigger than the Constitution.

|1.16.09 @ 12:55PM|#

Some things are just bigger than the Constitution.

True, when the constitution was written, they didn't have a war on drugs that needed to be fought.

|1.16.09 @ 12:59PM|#

Eliminate the demand for illegal substances by eliminating those products that are used to ingest and inhale illegal substances??

Bwahahahahahaha!!!

Start hoarding beer cans, aluminum foil, and apples. It's only a matter of time before they realize that we're SURROUNDED by these evil devices!!

|1.16.09 @ 1:11PM|#

True, when the constitution was written, they didn't have a war on drugs that needed to be fought.

Be still my throbbing heart.

Untouchable hands along a winding stroll,
has many an eve possessed my thoughts,
melding my heart and soul
in soft temper, lovingly wrought.

To wit, some notion begs to be,
binding these images and senses.
But fleeting truths cannot see,
beyond old craggy fences.

The watery windows of a rending departure,
haunt the memory of an angel's cry,
which now descend in silent torture,
it's timbre, forever etched in mind's eye.

An unquenchable thirst in a desert filled,
burning in the heart that is smitten.
An unanswered question lingers still,
along the winding stroll forbidden.

E-mail me my internet love. We are destined to walk through life hand in hand.

Joel|1.16.09 @ 1:14PM|#

In other words, is Wizzinator "too big to fail?"

I'm sure they could build one that is.

Tyler|1.16.09 @ 1:17PM|#

Sometimes I wonder what goes through the minds of people like Mary Beth Buchanan. Don't they know they're ruining the country?

Probably something like:

"Sometimes I wonder what goes through the minds of people like those crazy libertarians. Don't they know they're ruining the country?"

|1.16.09 @ 1:47PM|#

I had two of those exact bongs(pictured with Cheech and Chong) in high school, one green and one purple. US Waterpipes model 202

ChrisO|1.16.09 @ 2:37PM|#

Next, they'll ban using forks in the proximity of Coke cans, since the two items could potentially be used together to produce drug paraphernalia.

oat willie|1.16.09 @ 2:48PM|#

When a stoner has some cannabis and nothing to smoke it with, he turns into a freakin' MacGuyver and can make anything into a bong or pipe.

|1.16.09 @ 2:50PM|#

with any luck, this bitch buchanan will be standing in the unemployment line very soon. what a cunt.

nebby|1.16.09 @ 3:03PM|#

I know Juanita is a troll... but the reason they didn't have a war on drugs is the founding fathers were too busy growing and using cannabis.

|1.16.09 @ 3:54PM|#

This makes me want to open an art gallery full of non-functional bongs, just art pieces, and wait for the DEA to show up.

|1.16.09 @ 4:04PM|#

Damn fine article Jacob. Good to see you back in the saddle.

There's a paraphernalia story I'd really like to know. What exactly happened to Apogee Bongs. Especially what happened to their bong designs, and are they lost to history. I can't find a thing googling.

Any of you old enough and fortunate enough to have had, or at least know someone who had, an Apogee Bong will know what I'm talking about. Those things were engineered. They were spill resistant and easy to clean, and had all these features you wouldn't have thought of. And apparently nobody has since. There's plenty of Bongs on the market. You can pay as much as you want, for elaborate contraptions and works of art, or what ever. But I've not seen anything as practical and functional, not even close.

Justen|1.16.09 @ 5:59PM|#

Heh, in my 'younger years' we refused to pay the outrageous prices charged for bongs. We made our own with glass bottles, propane torches, dremel tools, silicon tubing, and epoxy. We carved them out of carrots and apples, we built them out of faucets and screened them with faucet screens. We whittled wooden pipes and we built camoflauged pipes out of every conceivable household item. We did all this in a studio apartment roughly the size of a postage stamp and amazingly without a single injury.

Ultimately I concluded that all that time spent being stoned was a waste of time and money that I could spend doing things I enjoyed even more. I have to thank idiots like Buchanon, though; to the extent that they are successful they'll be encouraging creative thinking and craftsmanship. I hope it further encourages people to think critically on not only how, but why, to use the methods and tools at hand in the most effective and elaborate ways possible to subvert and fight against the opressive antics of the drooling hordes. After all, it's not very difficult.

|1.16.09 @ 6:10PM|#

Its funny that while all this goes on, the totalitarians are in the thrall of the most dibilatating addiction pandemic in this country - and the one that threatens our childrens' future the most - and that addiction is to Uncle Mao's Credit Crack Pipe. The analogy is disturbingly perfect. One of these days our "dealer" (Uncle Mao) is going to do what every stereotype drug-dealer does to the fifth grader after he gets him hooked for free: demand payment to supply the drug. The withdrawl will be epic, and just might kill the addict. We are so stupid as a nation to do this to ourselves to amongst other things, stop the menace of Tommy Chong. We deserve it.

geniusiknowit|1.16.09 @ 6:17PM|#

IT'S OKAY TO DO DRUGS.

|1.16.09 @ 8:53PM|#

"The aggressive marketing of the tools and paraphernalia of drug use has been an active affront..."

I don't think I would define operating a business in 'subterfuge' in order to avoid federal prosecution as "aggressive marketing".

Steve Clay|1.17.09 @ 12:20AM|#

So if you make an image on the web of a dotted square with a little scissors icon and put "print and put illegal drugs here", would that be paraphenalia? How about a "Art Now Prohibited" government announcement... Y'all could do a whole web campaign.

Walter|1.17.09 @ 2:15AM|#

Well, nothing like flamboyant idiocy to give you a good old fashioned case of the gurgling rage.

I suppose it would violate libertarian ideals of private property if someone were to get some marijuana seeds and sprinkle them all over Buchy's lawn, then a month later call the cops on her.
I'm sure it wouldn't violate any ideals of ironic hilarity, though.

|1.17.09 @ 7:34AM|#

The F****** Stupidity Is Endless In Our Lands...

ed|1.17.09 @ 11:31AM|#

the crusade against drug paraphernalia punishes controversial speech

If making and selling a bong is "speech," then yes. What's really being punished is free enterprise, of course. It is a Constitutional issue, more pertinent to the fatal commerce clause (Article I, Section 8) than the 1st Amendment.

Erm|1.17.09 @ 4:05PM|#

ed -- the article clearly states that the practical effect of these bans is to allow bongs to be produced and sold, but not, say, with marijuana leaves on then. Or, if they're advertised by a stoner icon, that too is illegal.

The selling of glass bongs is typically allowed, but it's the messages about drug use that are typically punished.

Erm|1.17.09 @ 4:06PM|#

Typically, typically, typically. I had no idea how stupid that last post sounded until I posted and read it back. Should have used preview.

me|1.17.09 @ 5:21PM|#

where there are human beings there will be 'drugs,' as there will be spirit, heroism, love, etc. and unfortunately homicide and war. any scientific thesis or dissertation will conclude that. anyone trying to legislate otherwise is a fool as the emperor who wore no clothes. 'we' cops are (some of) the biggest purveyors of drugs - not the other way around. not to mention amongst the biggest users. double standard? indeed.

grant aubin|1.19.09 @ 8:59AM|#

What a wonderful, funny, sad and scary article. The fact that Tommy Chong was jailed for his activities is truly frightening. I live in South Africa where our wickedly inept, very often corrupt police force struggle to catch murderers, rapists, thieves and child abusers, so I'm not scared of walking down the street and smoking a spliff. And Jacob Zuma, our President to be, has spent years avoiding his day in court for all sorts of (I suppose I should say alleged) crimes. Thus I don't think we have to worry about zealous, clearly insane prosecutors and mad soccer moms (Peggy Mann and Sarah Palin would make quite a team) with too much time on their hands going after the paraphanalia industry.
Although pot smoking is hugely popular in my beautiful, fucked up country, there are not many head shops in Port Elizabeth (where I live). However I did notice some very cool (but overpriced) bongs (with marijuana leaves on the wrapping ) for sale at the beachfront flea markets over christmas.
What I want to tell these zealous idiots mentioned in your article is that banning bongs and chillums isn't going to stop pot smoking. The sooner all drugs are legalised the better. Then perhaps we can start sorting out the problem.
Thanks for a great, but rather tragic read. The REASON website - where sane minds clearly prevail - rocks. GRANT AUBIN.

Bob A|1.19.09 @ 10:13AM|#

During Prohibition, the feds didn't outlaw shot glasses and shakers.

Dylan|1.19.09 @ 12:04PM|#

A war on drug paraphernalia. Interesting.

*takes bong hit*

Well, it's clearly working.

|1.19.09 @ 3:41PM|#

Great in depth article, thanks

|1.21.09 @ 8:40AM|#

I wonder if Buchanan really thinks it's having an effect. In my pot smoking days, my first pipe was basically a small block of wood with two holes drilled in it. My first bong was made out of pieces I nicked from my chemistry lab. As others have noted, I've smoked out of apples, and pop cans, made pipes out of, well, pipe and small plastic booze bottles and gravity bongs out of gallon milk jugs. It's nicer smoking out of a nice well made bong than out of a pop can, but this has zero effect on drug use. I assume she knows she's putting on a show, but you never know how naive and invested in their chosen vocation these drug warriors are.