Jacob Sullum

Karen Tandy, expected to be confirmed soon as the new head of the Drug Enforcement Administration (DEA), did not face many tough questions when her nomination was considered by the Senate Judiciary Committee. One of the few exceptions came from Sen. Joseph Biden, D-Del., who asked her about a problem he was instrumental in creating.

Biden referred to an incident in Billings, Montana, on May 30, when a DEA agent brought a copy of the Illicit Drug Anti-Proliferation Act to the local Eagles Lodge. The agent warned the lodge's manager that a fund-raising concert sponsored by the National Organization for the Reform of Marijuana Laws and Students for a Sensible Drug Policy might violate the law if anyone attending the event lit up a joint.

The law, which Biden sponsored, makes it a federal crime to "knowingly and intentionally" make a place available "for the purpose of manufacturing, distributing, or using any controlled substance." Violators are subject to $250,000 or more in civil penalties, a criminal fine of up to $500,000, and a prison sentence of up to 20 years.

The threat of these penalties "freaked me out," the Eagles Lodge manager told the Drug Reform Coordination Network. She said the DEA agent "didn't tell us we couldn't have the event, but he showed me the law and told us what could happen if we did. I talked to our trustees, they talked to our lawyers, and our lawyers said not to risk it, so we canceled."

Biden pronounced himself "troubled" by this application of his law. He pressed Tandy to explain how she planned to "reassure people who may be skeptical of my legislation that it will not be enforced in a manner that has a chilling effect on free speech."

The way Biden posed the question was telling: For both the senator and the DEA, the key thing is not so much to protect First Amendment rights as to "reassure people who may be skeptical" about his broadly worded, draconian statute. But for anyone who is concerned about freedom of speech and the rule of law, there are ample grounds for skepticism.

When the legislation was debated last year, critics argued that it could be applied to any event that attracts drug users, including not only raves (Biden's main target) but rock concerts, political rallies, even backyard barbecues if guests happened to smoke pot. The objections were so loud that the bill, then called the Reducing Americans' Vulnerability to Ecstasy (RAVE) Act, never came up for a vote.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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