This year Biden avoided debate by introducing his legislation under a new name and quietly attaching it to a wildly popular bill establishing a national alert system for abducted children, which was signed by President Bush on April 30. Barely a month later, critics of the legislation were proven right by the incident in Billings.
Jeff Sweetin, special agent in charge of the DEA's Rocky Mountain Division, defended the warning to the Eagles Lodge in a June interview with The Billings Outpost. But he conceded that "it certainly doesn't look very good."
Attempting to improve appearances, the DEA announced on June 20 that it is "committed to responsible enforcement of this law, which will shield innocent businesses from criminal liability for incidental drug use by patrons." It referred to "updated guidance" and a new requirement for "Headquarters review of proposed enforcement activity" to "ensure that all DEA activity under the Act complies with its terms and intent and with the First Amendment."
Tandy cited that announcement in response to Biden's questions, but it's not very reassuring. "Innocent businesses" that already had to guess at the meaning of "knowingly and intentionally" -- a "high legal standard" according to Biden, but not according to that DEA agent in Billings -- now have to wonder when drug use counts as "incidental."
That kind of uncertainty is the essence of a chilling effect. For anxious venue owners, the question is not whether the government could impose a civil fine or obtain a conviction that would be upheld on appeal; the question is whether a federal agent might think it's worth a shot.
There is a broader issue here than freedom of speech. The rule of law requires that people be given adequate notice of which actions will get them into trouble. In seeking to hold property owners and managers liable for other people's drug use, Biden's law fails that basic test.