In March 2004, less than two months after the plea agreement, the same police department raided the same store and seized several of the same items prosecutors had just given back. After the government filed new paraphernalia charges against Smoke Signals, a judge acquitted the company in a bench trial, concluding that Hargrove and her mother, Kelly, the store’s owner, could not knowingly have possessed drug paraphernalia, a requirement for conviction under state law, since the items had been returned by the government. But when Smoke Signals filed a motion asking for the merchandise back, the judge said no. Despite the fact that the government had told Susan and Kelly Hargrove the items were not drug paraphernalia, the judge concluded they were, based mainly on the testimony of a detective who conceded he was not an expert on the subject and could not explain the methods he used to identify paraphernalia.
Smoke Signals’ lawyer, Jonathan Cohen, took the case to the New Hampshire Supreme Court, arguing that the state paraphernalia law was so vague that people could not reasonably be expected to know when they had violated it. In April 2007, the court rejected that argument but ordered the return of Smoke Signals’ merchandise, saying it could not be considered contraband in light of the store’s acquittal on paraphernalia charges and the government’s earlier assurances that it was legal.
Despite experiences like the Hargroves’, defendants in state paraphernalia cases have some advantages over those facing federal paraphernalia charges. For one thing, the feds tend to come down a lot harder. In addition to paraphernalia charges, each of which carries a penalty of up to three years in prison plus a $250,000 fine, federal prosecutors can bring money laundering and racketeering charges based on the same actions. If you deposit the proceeds from paraphernalia sales in the bank, that’s money laundering; if you make more than one sale or deposit, that’s a “pattern of racketeering activity.” The penalties add up fast, creating tremendous pressure for a guilty plea. “The doo-doo gets deep,” says Vaughn. “I can show you theoretically how you could get life in prison.” And then there’s the uncomfortable fact that the government is apt to seize all your assets before you can hire a lawyer.
Assuming you nevertheless choose to go to trial, the government’s burden is pretty easy to meet, thanks to the Supreme Court’s interpretation of the federal paraphernalia ban. In a federal trial, says Vaughn, “They don’t really give a shit if you have a sign in there that says, ‘Not intended for illegal use.’ ” He describes the government’s attitude this way: “We don’t care about the way you displayed it. We don’t care about the way you marketed it. It was illegal sitting there.”
‘You Have to Leave Here Right Away’
Under state laws, by contrast, the defendant’s state of mind is relevant, so such disclaimers can make a difference. So can the sale of tobacco or legal herbs alongside smoking equipment and the avoidance of marijuana leaf decorations and other countercultural signifiers. It does not help your case if you advertise in High Times, sell it or other drug-related magazines in your store, or distribute NORML literature. In 1981 NORML unsuccessfully challenged Virginia’s drug paraphernalia ban in federal court, arguing that it infringed on freedom of speech by encouraging police to seize the group’s leaflets as evidence of a merchant’s intent.
Retailers also have to be careful about what they let customers say. “If somebody comes in and says, ‘Sell me a dope pipe,’ and [he’s] body wired and you sell it to him,” Vaughn says, “you’re screwed.” Jon Gettman, who never had to worry about such things when he was running a head shop in the ’70s, says he recently visited a store in Miami that was “selling what I recognized to be bongs, and they had to be very, very careful about the language anyone used in the store in referring to these things. In fact, I…made some reference [to marijuana], and they politely asked me to leave.” At a similar store in San Diego, Allen St. Pierre offered the clerk his NORML business card. “He looks at it,” St. Pierre recalls, “and he goes, ‘Holy shit, you’ve got to get out of here. You have to leave here right away.’ ”
Maybe those clerks were excessively cautious. But it’s clear that pipes coupled with controversial drug-related speech can get a business into trouble when the pipes alone would not. In February 2006, police in Middletown, Pennsylvania, filed paraphernalia charges against the manager of the Spencer’s Gift store at the Oxford Valley Mall and the CEO of the company that owns the chain. The crime ostensibly was selling water pipes, but according to the Trentonian police also objected to posters, T-shirts, hats, and other items “depicting marijuana themes,” some of which were seized as evidence. “When you combine the various above items depicting marijuana usage with the hookahs or water bongs,” said a police detective, “it is apparent that the company is creating the appearance that the hookahs are for marijuana use. The message on all these items being sold is certainly pro–drug use.”
Richard Cowan, publisher of Marijuana News, has proposed a sales tactic that would highlight the speech-suppressing aspect of paraphernalia laws. He urges head shop owners to “undermine the enforcement of the marijuana laws” by selling legal herbs alongside pipes and encouraging customers to smoke the stuff openly as an act of protest. There would be “no subterfuge, no pretense,” he wrote in a 2002 essay on his website. “This is an explicitly political action.” It would be interesting to see the government’s response to such a campaign. Along similar lines, reason considered including rolling papers labeled “For Marijuana Use Only” in each copy of this issue to illustrate the silliness of paraphernalia laws but decided against it because of legal concerns.
One of the clearest recent examples of how these laws punish speech was the case against Tommy Chong, famous for playing a clueless stoner alongside Cheech Marin in movies such as Up in Smoke and on his own in the sitcom That ’70s Show. Chong’s publicist initially argued that the colorful, elaborate pipes produced by Chong Glass were not marijuana smoking devices but works of art. This claim was not as disingenuous as it sounds: Many of the pipes were too pricey for casual use, and some had been featured in a Los Angeles art exhibit. But Chong quickly dropped that argument, presumably after getting legal advice. Under federal law, Vaughn explains, “the bottom line is this: If it’s a cylindrical tube with a base on it with a stem projecting from the side with a bowl on it that you face over to smoke, that’s a bong.…It’s per se illegal. I don’t care if you say that it’s for your mantle. I don’t care if you say that it’s art for art’s sake.”
In the end, Chong never got the chance to try any sort of defense. To avoid charges against his son and his wife (who co-signed the loan used to start Chong Glass), he pleaded guilty and was sentenced to nine months in prison, which he completed in July 2004. He also paid a $20,000 fine and forfeited $120,000 in assets. The sentence, one of the more severe punishments received by defendants charged in Operation Pipe Dreams, was imposed after Assistant U.S. Attorney Mary Houghton urged the judge not to let Chong off lightly. In a pre-sentencing brief, she complained that “the defendant has become wealthy throughout his entertainment career through glamorizing the illegal distribution and use of marijuana. Feature films that he made with his longtime partner Cheech Marin, such as ‘Up in Smoke,’ trivialize law enforcement efforts to combat drug trafficking and use.”
It was a remarkable concession that the government wanted to punish Chong at least partly for making fun of drug warriors and mocking prohibition. “This was the government’s payback for all the Cheech and Chong movies that ridiculed the hypocrisy of the government’s War on Drugs,” Chong wrote in his 2006 memoir The I Chong. “The DEA… hated the way we portrayed them in movies...The Feds took a fictional movie and prosecuted the actor and writer for exercising his freedom of expression.” When I ask Buchanan, Houghton’s boss, about the prosecution’s references to the Cheech & Chong oeuvre, she says one of the factors the judge considered at sentencing was whether Chong had followed through on a post-indictment promise to educate children about the dangers of drugs. When I ask what bearing the films he made years before his arrest had on that question, she says, “The court had a number of factors to consider.”
As for “glamorizing” drug use, it hardly seems an apt description of movies featuring two stoned doofuses. “I’ve seen every Cheech & Chong movie,” says High Times Associate Publisher Rick Cusick, “and glamour is not a word I’ve ever attached to that experience. I’ve never walked away from a Cheech & Chong movie saying to myself, ‘Gee, I want to be more like those guys.’ ”
In a weird coda to the Chong prosecution, the comic told the Pittsburgh Post-Gazette that federal agents seized 8,000 to 10,000 copies of a/k/a Tommy Chong, a documentary about his case that’s highly critical of Buchanan, when they raided the Newport, Kentucky, offices of Spectrum Labs in May. The raid was part of Buchanan’s investigation of the company for selling drug-test-beating products such as Urine Luck. Margaret Philbin, a spokeswoman for Buchanan’s office, says Chong’s claim of a mass DVD seizure is “completely false,” though “we may have taken one.”
‘They’re All Over the Country’
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.
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|#
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.
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