According to a source close to the store, lawyers for co-owners Adam Eidinger and Alan Amsterdam advised them to stop selling the books for fear that they could be used as pretext for another raid while the two negotiate with prosecutors over charges stemming from October's raids.
It's probably sound advice. The police affidavit that justified the October raids made note of the books and DVDs in the store, using them to make a case that the water pipes the stores sells are actually nothing more than bongs to be used for marijuana. Under the District's laws on drug paraphernalia, these distinctions matter—police have to prove that a seller knew that a pipe would be used for illegal drugs for the pipe itself to be illegal, and what better way than a few books and DVDs to make the case?
Last November I noted the free speech implications of the Capitol Hemp investigation:
The upshot of using such evidence is that people can be punished for exercising their First Amendment rights: The same item might be deemed legal when sold on its own but illegal when sold alongside pro-cannabis literature or (as in this case) "even a DVD titled '10 Rules of Dealing with Police.'"
I noted that problem in "Bongs Away!," my 2009 Reason story about drug paraphernalia laws. While the Supreme Court has dismissed such concerns, the focus on countercultural signifiers and pro-drug (or anti-prohibition) speech is of a piece with the whole anti-paraphernalia crusade, which is best understood as a reaction against messages that offend people.
In the 1982 case Hoffman Estates v. Flipside, the Supreme Court unanimously rejected First Amendment objections to an Illinois town's anti-paraphernalia ordinance. The Court noted that "Flipside 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, in clear violation of the guidelines." But Justice Thurgood Marshall did not think criminalizing that sort of conjunction raised any First Amendment problems. He was unimpressed by "the theoretical possibility that the village will enforce its ordinance against a paper clip placed next to Rolling Stone magazine." That scenario has proven to be not so theoretical, since selling magazines, books, DVDs, and T-shirts that criticize the war on drugs exposes merchants to legal risks they would not otherwise face. The chilling effect in this case seems pretty clear.
[via Radley Balko's Twitter feed]