That Special Glow

Last week, in a little-noticed decision, the U.S. Court of Appeals for the 5th Circuit made it easier to attack the trappings of rave culture in the name of fighting drug use. The court overturned a federal judge's injunction blocking enforcement of a plea agreement provision that barred pacifiers, masks, and "objects that glow" from the State Palace Theater in New Orleans.

The theater's owners, Robert and Brian Brunet, had pleaded guilty to conspiracy charges under a federal law aimed at landlords who "knowingly and intentionally" make their property available for drug use. (This is the statute that was expanded by Joe Biden's Illicit Drug Anti-Proliferation Act, a.k.a. the RAVE Act.) Under the plea agreement, which called for five years' probation and a $100,000 fine, the Brunets promised to keep certain items associated with MDMA use out of their theater.

Three rave performers who use glowsticks in their acts challenged this provision, arguing that it violated their First Amendment right to freedom of expression. The district court judge agreed, but now the 5th Circuit says he shouldn't have. Given "the principles of finality and judicial restraint," the appeals court ruled, "a third-party collateral attack on a final criminal judgment is nonjusticiable"–"at least in circumstances similar to those presented in this action."

The upshot is that the Drug Enforcement Administration has less reason to worry about the chilling effect of its anti-rave campaign. Not that it was all that worried to begin with.