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.

NEXT: More Plagiarizing Historians

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  1. “Nonjusticiable?” Wouldn’t it be nice if lawyers and judges (i.e., egomaniacal lawyers in black dresses)could learn to write English?

  2. shouldn’t you, if you’re going to make a law against something, have tried it first (or at least have testimony from ravers 🙂 before you enact it? that should be the law!

  3. fredH,

    I vaguely remember something from college about legal “standing,” i.e., you’re supposed to be directly affected by a case to be able to take it to court. I’ve been surprised at how little I’ve heard about it since and how often parties that would seem to have no direct connection to a case get to be involved.

    The upshot is that this may very well be a valid judicial principle. But at the same time, I wonder if it’s one that gets applied very selectively. Either way, it sure sucks when a law cannot be challenged over the rights or injuries of third parties!


    WASHINGTON — Federal drug agents are so concerned about the growing use of a little-known and accessible herb with hallucinogenic qualities that they are taking steps to treat it like cocaine, heroin and LSD, and make it illegal.

  5. “shouldn’t you, if you’re going to make a law against something, have tried it first ”

    Would’ve made a big difference in abortion laws.

  6. Fyodor:

    Thanks. Actually, I figured out what the word means from the context and its latin roots. My real point was about the infelicitous use of jargon when plain English can convey the message. However, I agree with you that it sucks that third parties have no redress in these situations.

  7. They can have my glow-stick…when they pry it FROM MY COLD, DEAD HANDS!

  8. fredH, where you just being ironic when you used the word “infelicitous” while bemoaning the use of English that’s not plain?

  9. Sam:

    Full marks for perception.

  10. Sam, were you just being ironic when you used the word “bemoaning” while castigating fredH’s use of the word “infelicitous”.

    …and so on…and so on…

  11. No-name:

    No, I wasn’t being ironic, because I wasn’t castigating. I was asking a question out of curiosity.

  12. Help! I’m trapped inside a semantic slough!

  13. Eschew obfuscation.

  14. hilarity will ensue when salvinornin a is scheduled. really.

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