First Amendment Second Casualty

Paul Finkelman

Paul Finkelman is an associate professor at the Brooklyn Law School. He is a historian who teaches constitutional law, civil liberties and legal history. This article is adapted from the March I April 1991 issue of Drug Law Report.

Wars have traditionally provided governments with an opportunity to expand their power and to suppress dissent. If truth is the first casualty of war, then freedom of speech is the second. This seems to be true in the war on drugs, as individual liberties are being subordinated to the needs of the new "national security." The war on drugs has already brought the nation to a semi-martial state, threatening fundamental liberties. As long as we approach the drug problem with warlike fervor, it is likely that civil liberties will suffer as they have during other wars.

Judicial, legislative and executive branch officials at the state and federal levels have carved a "drug exception" out of the Bill of Rights in the last few years. The Supreme Court majority has made some sweeping decisions, prompting the following dissent from Supreme Court Justice Thurgood Marshall in a 1989 case involving drug testing: "There is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest." Skinner v. Railway Labor Executives' Association, 109 S. Ct. 1402, 1426.

Most commentaries on the war on drugs and civil liberties have focused on the drug exceptions for criminal due process and the subsequent erosion of liberties protected and guaranteed by the Fourth, Fifth, Sixth and Eighth amendments. Certainly those rights are reeling under the withering onslaught of the Drug Enforcement Administration and other drug war bureaucracies. However, as so often happens in wartime, collateral damage hits unexpected targets. The drug war is now pounding the First Amendment.

The attacks on the First Amendment should serve as an important warning to those who have so far ignored or taken no interest in the civil liberties violations of the war on drugs.

The recent assaults on First Amendment rights are beginning to make the drug war resemble other wars.

History of the First Amendment in Wartime

Most of America's wars have led to some deprivations of individual rights and liberties. The greater the opposition to a war, the more the war has generated a crackdown on fundamental liberties. When war aims are unpopular with a large segment of the population, suppression of fundamental liberties has often been a necessary component of the war effort.

Union generals occasionally closed down hostile newspapers during the Civil War. In some northern states where there was opposition to the war, like Indiana, military officials suspended habeas corpus and then denied some people fundamental due process rights. See Ex parte Milligan, 71 U.S. 2 (1871). Such actions allowed Union military officials to stifle freedom of expression.

National, state and local governments vigorously suppressed First Amendment liberties during World War I. The government dealt harshly with pacifists, especially Mennonites, whose religious teachings prohibited them from entering the military. Rights disappeared for those whose conscience prevented them from going to war. Overzealous government officials also trampled on the free speech rights of labor leaders, pacifists, socialists, radicals and German-Americans who questioned the war effort.

Equally important, in cases coming out of World War I, the Supreme Court enunciated for the first time that the Bill of Rights meant less in wartime than it did in peacetime. See, for example, Schenk v. United States, 249 U.S. 47, 49 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919). In Schenk, Justice Oliver Wendell Holmes Jr. noted, "[I]n many places and in ordinary times, the defendants in saying all that was said in the circular would have been within their constitutional rights." But, Holmes argued, "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

It takes little imagination to see how this concept could be translated into a drug-war notion that there should be, limitations on what might be said about drugs, limitations on the right of people to unimpeded travel (see generally Shapiro v. Thompson, 349 U.S. 618, 1969) or limitations on the right to be free from warrantless searches.
Cold wars also have affected the First Amendment. The undeclared war with France in the 1790s led to state prosecutions for sedition and the adoption of the federal Sedition Act of 1798. Under this act, critics of President John Adams were prosecuted solely for their opinions about the president. See, for example, United States y. Lyon, 15 F. Cas. 1183 (1798), where Congressman Lyon from Vermont was convicted and jailed under the act for writing a letter calling John Adams "pompous"; Lyon was reelected while in jail. The constitutionality of this statute was not tested during the two years it was in force, but the Supreme Court many years later found it to be unconstitutional in the "court of history."New York Times v. Sullivan, 376 U.S. 254, 276 (1964).

The fear of a worldwide Communist revolution led to the Red Scare of 1919, with its notable disregard for the protections of the freedom of speech and press clauses of the First Amendment.

In more recent times, the Cold War helped fuel McCarthyism, with its diminishment of First Amendment rights. Thus, in Dennis v. United States, 341 U.S. 494 (1951), the Supreme Court abandoned the "clear and present danger" doctrine for a new, more restrictive test that allowed the prosecution of individuals for the mere advocacy of ideas and beliefs. Dennis justified the incarceration of those who advocated or taught a "pernicious" doctrine but took no other steps towards implementing the doctrine.

Domestic Casualties

The casualties of the drug war battlefield are right here at home. In 1988, there were over 1 million drug-related arrests. Between 1980 and 1991, the number of people in American prisons doubled to over 1 million. According to the Sentencing Project, the United States has now surpassed both the Soviet Union and South Africa to become the nation with the largest percentage of its population in jails or prisons. This trend is likely to accelerate as long as the war continues. These vast numbers of arrests affect millions of other Americans, some of whom are thoroughly innocent of any drug-related activity, and who resent seeing their relatives and friends arrested in the war. The drug war is unpopular among innocent bystanders who are stopped by the police or in some other way harassed. Collateral damage in this war directly harms American citizens.

Among the truly innocent casualties may be Americans suffering from diseases like glaucoma, rheumatoid arthritis, AIDS or cancer, who would benefit from greater access to marijuana, cocaine or heroin. Marijuana is useful in the treatment of cancer, muscle spasms and glaucoma In recent years, it has been discovered that marijuana is useful in relieving the debilitating effects of taking AZT. Cocaine is useful in the treatment of severe rheumatoid arthritis. Heroin is one of the few effective drugs for relieving the pain felt by terminal cancer patients.

The fact that the person in charge of the war has been called a "czar" suggests the mental state of the drug warriors. Order, power and arbitrary force — these are the concepts associated with a czar. They are the polar opposite of the rule of law and the protection of civil liberties and individual rights embodied by the Bill of Rights. Acting as though we are all in a war zone, the drug warriors are pushing the Bill of Rights to the brink. American courts have often gone along with many of these governmental policies; indeed, in some instances the courts have led the way.

The assault on the Bill of Rights during the drug war has been strikingly broad-based, undermining many fundamental rights and liberties. In part, this is because there are so many disbelievers: tens of millions of Americans regularly disobey U.S. drug laws, supporting a $50-150 billion drug industry in the process.

At first glance, it would seem that the First Amendment has been untouched by the war on drugs. Unlike other wars, there seem to be no limitations on the free speech of those who oppose this war. In the last few years, academics who openly criticize the drug war are living proof that our freedom of speech has not been harmed. It is unlikely that decrying American involvement in World War I would have been possible after April 1917. Similarly, only the bravest of academics dared speak out against McCarthyism during the worst days of that dark era.

Unfortunately, the drug warriors have invaded academia. The Drug-Free Communities and Schools Act gives the government new powers to curtail speech that involves drugs, as witnessed recently at Stanford University. The Stuart Reges case shows that when freedom is balanced against a perceived threat during wartime, freedom loses.

Is the Press Free to Advocate Drug Legalization?

High Times, a monthly magazine that claims a circulation of about 250,000, has been under investigation by federal prosecutors in the last year. High Times is the largest magazine devoted to the legalization of marijuana, and editors there believe the government is trying to silence their investigative reports on the value of marijuana and hemp. As Jane Curtley, executive director of the Reporters' Committee for Freedom of the Press, said in July 1990, "This is the first instance.. .where the war on drugs has been directed at a publishing organization.. .where it has gone right into the newsroom."

In May 1990, High Times sought to quash grand jury subpoenas issued to the editors of the magazine. The motion to quash noted that the manner in which the U.S. attorney in New Orleans issued the subpoenas violated Justice Department regulations on investigation of the press. The motion argued that "[b]y intimidating High Times' advertisers and subscribers the government is attempting to exercise unlawful prior restraint and self-censorship by intimidation" and that "the forms of harassment currently being applied towards High Times magazine have a substantial effect on its ability to disseminate information to the public." Motion to Quash Grand Jury Subpoenas, at 6-7 (submitted May 24, 1990), Trans High Corp. v. United States, Misc. No. 90-1868 (E.D. La.). This same strategy was successful last year in putting out of business Sinsemilla Tips, a magazine devoted to drug policy and marijuana cultivation techniques.

An outright ban of High Times would probably not withstand a court challenge, but law enforcement officials at the state and federal levels are finding other ways to suppress the magazine. A Montana police chief has tried to convince newsstands not to carry High Times. Such behavior by a high-ranking public official is bound to have a chilling effect on the First Amendment. This sort of pressure borders on a new form of seditious libel. In July 1990, the Montana police chief said, "The point of the magazine is, 'Hey, let's make pot legal.'" In other words, at least some police officials are interested in suppressing the magazine because of the ideas it promotes.

In addition, it is plausible that the government seeks to suppress High Times because the magazine ridicules government officials. The quality of the satire and ridicule in High Times is not yet in the class of John Peter Zenger's New York Weekly Journal, Jonathan Swift's essays and stories, or H.L. Mencken's wit. Nevertheless, the magazine follows that time-honored tradition of satire with its references to drug czar William Bennett as the "drug bizarre" and such headlines as "What Jerks! Bennett Blasts Pot After Aide Has Nicotine Fit." Satire is clearly protected speech. Hustler Magazine v. Falwell, 108 S. Ct. 876 (1988). But government officials have always been uncomfortable with such criticism, and only the most principled officials have been unwilling to retaliate against their critics when the opportunity arose. While it is impossible for government officials to retaliate against an offensive magazine through libel action (New York Times v. Sullivan, 376 U.S. at 254), the attacks on High Times may show that the government has simply developed a new method of attack on the drug-related press.

Federal officials have claimed that High Times is part of a national conspiracy to distribute drugs and cultivate marijuana. As part of its investigation, federal prosecutors asked for the names, addresses and phone numbers of every "current and past" employee of the magazine. Such an investigation is likely to intimidate any current or potential High Times employee. Drying up a source of talent in journalism is just one way drug warriors can silence a magazine that they find annoying.

Because some of the magazine's advertisers sell drug paraphernalia — equipment to grow indoor plants and marijuana seeds — federal prosecutors charged that the magazine may be a continuing criminal enterprise, which would subject it to the severe penalties of the Racketeer-Influenced Corrupt Organization Act. In July 1990, U.S. Justice Department spokesperson Dan Eramian claimed that the subpoenas were "demands for purely commercial or financial information unrelated to the news-gathering function." The government argued that High Times violated the law by running advertisements for a Dutch catalog that sells marijuana seeds. The government did not allege that the magazine advertised for sale the seeds itself. (In the Netherlands it is not illegal to possess or sell marijuana seeds.)

The DEA and state authorities have also raided numerous stores and mail-order houses that sell horticultural equipment because these businesses advertised in High Times. The agents have confiscated business records in an attempt to discover who might be growing marijuana in their homes. In a typical case, police officials from the North Carolina State Bureau of Investigation conducted a warrantless search on a man's home because he had ordered three light meters from a firm that advertised in High Times. The man grew orchids.

The raids on advertisers and consumers of perfectly legal products raise serious questions about the protection of a free press. Harassing a magazine's advertisers is an effective form of censorship. In October 1989, the DEA searched numerous businesses that advertised in High Times. The magazine initially lost two thirds of its advertisers, and over a six-month period following the raids, the magazine's total advertising revenue dropped by a third. If advertisers cease to purchase space, the magazine may be forced to cease publication.

While government officials claim they are investigating High Times because it is part of a conspiracy to distribute drugs, it is more likely that the magazine's message disturbs law enforcement officers the most.

Cure Worse than Ill

The war on drugs has a high aim. rid the nation of a serious problem that gravely affects the health and wellbeing of its citizens. What is emerging in this war, however, is an attitude that the ends justify the means.

We may soon discover that rather than freeing ourselves from drugs, we have simply given up our freedoms. The expediencies of the war on drugs, including threats to freedom of the press, undermine the core of freedoms essential to a democracy. If this trend continues, the "cure" for drugs — the uncompromising drug war — will turn out to be far more lethal to our society and our democracy than the "disease" itself. The toll of drugs will be higher than even the most pessimistic drug warriors contend; our Bill of Rights and our political freedom will be the ultimate casualties.

References

John J. Curtin Jr., "The Crisis in the Justice System," American Bar Association Journal, Vol. 8, 1991.
Paul Murphy, World War I and the Origin of Civil Liberties in the United States, W.W. Norton, Inc., New York, 1979.
Jerome H. Skolnick, "A Critical Look at the National Drug Control Strategy," Yale Law and Policy Review, Vol. 8, No. 75, 1990. James Morton Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties, Cornell University Press, Ithaca, N.Y., 1956.
Leslie Kim Trieger, "Protecting Satire Against Libel Claims: A New Reading of the First Amendment's Opinion Privilege," Yale Law Journal, Vol. 98, No. 1215, 1989.
Dan Viets, "DEA Attacks Fundamental Freedoms," The Drug Policy Letter, Vol. 2, No. 4, Fall 1990.
Steven Wisotsky, "The Drug Crackdown: Trashing the Bill of Rights," Paper prepared for presentation at plenary session of the Biennial Conference of the American Civil Liberties Union at Madison, Wisc., June 15-18, 1987.
Marc Mauer, Americans Behind Bars: A Comparison of International Rates of Incarceration, The Sentencing Project, Washington, D.C., 1991.
Kevin B. Zeese, "Court Continues Privacy Erosion," The Drug Policy Letter, Vol. 1, No. 1, March/April 1989.