Bongs away! How the crusade against drug paraphernalia punishes controversial speech.

• Author: Sullum, Jacob

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A FEW WEEKS BEFORE Barack Obama was elected president, Mary Beth Buchanan, the U.S. attorney for western Pennsylvania, filed criminal charges against the makers of the Whizzinator, a fake penis used to deliver clean urine for drug tests. The strap-on phallus, which comes in assorted "natural, lifelike skin tones," is connected by a tube to a hidden bladder containing urine (sold separately) that is untainted by marijuana metabolites. According to its manufacturer, Puck Technology of Signal Hill, California, the Whizzinator is so realistic that "we can't show you the whole thing," which is why ads for it in publications such as High Times had to be censored, with a marijuana leaf obscuring a photograph of the product in action.

Puck openly sold the Whizzinator and a companion product aimed at women, Number 1, through its website for several years. Its president, Gerald Wills, and vice president, Robert Catalano, did not believe they were violating any laws. But Buchanan argued that Wills and Catalano were selling illegal drug paraphernalia, a federal crime punishable by up to three years in prison and a $250,000 fine. A 1986 amendment to the Controlled Substances Act of 1970 defines drug paraphernalia as any item "primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance" After some research (presumably focused on possible interpretations of concealing), Puck's attorney concluded that Buchanan might have a case, so Wills and Catalano decided to plead guilty.

It was fitting that one of Buchanan's last prosecutions before the election involved drug paraphernalia disguised as a penis. Taking up causes championed by the Bush administration in response to the demands of social conservatives, she has shown a conspicuous enthusiasm for attacking both paraphernalia and pornography, areas that were of little interest to the Clinton administration and are not likely to be high priorities under President Obama. In addition to taking down the Whizzinator and investigating the manufacturer of Urine Luck, a drug-masking product, Buchanan spearheaded a highly publicized 2003 operation that resulted in drug paraphernalia charges against dozens of defendants, including comic actor Tommy Chong, nabbed for selling bongs. That same year, she charged Robert and Janet Zicari, operators of the porn studio Extreme Associates, with 10 obscenity violations that carry penalties of up to 50 years in prison. After being dismissed by the trial judge and reinstated by an appeals court, the Extreme Associates case is finally scheduled to be heard by a jury in March.

It's no coincidence that Buchanan and her former bosses, John Ashcroft and Alberto Gonzales, are known for worrying about pornography as well as drug devices. At bottom, both kinds of prosecutions aim to punish offensive speech. Just as pornography implicitly endorses recreational sex, drug paraphernalia implicitly endorses recreational drug use. Both are an affront to the moral values of the officials who choose to crack down on them.

Like obscenity prosecutions, paraphernalia cases often target people for conduct they believed was legal. The law in both areas is fuzzy, and drug paraphernalia, like obscenity, tends to be judged by the "I know it when I see it" method. When they go beyond gut reactions, police and prosecutors often focus on the expression of opinions about drug use or the drug laws: A pipe is more likely to be deemed illegal, for example, if it is sold next to High Times or a "Legalize It" T-shirt. It makes a kind of perverse sense that antiprohibitionist speech can earn you a conviction on paraphernalia charges, since it was the message sent by drug paraphernalia that led governments to ban it in the first place.

"These shops sell a dangerous lie about drugs and drug use," declared an Immigration and Customs Enforcement agent after raiding five South Florida head shops in March 2006. "It is obvious they want people to think it's OK to take drugs. This is simply unacceptable" The message that "it's OK to take drugs" offends drug warriors in the same way that Hustler offended Jerry Falwell or Janet Jackson's nipple offended Brent Bozell.

Because so much hinges on people in power taking offense, enforcement of local, state, and federal paraphernalia laws, like enforcement of obscenity laws, is sporadic and spotty. A business can operate openly for years before being identified as a criminal enterprise, even while competitors continue selling the same stuff unmolested. That is especially true nowadays, when drug paraphernalia, like pornography, is readily available online from both domestic and international sources. In both cases, this conspicuous online presence allows prosecutors to invoke the specter of the unregulated Internet, which brings bad influences into every home, while holding businesses based anywhere in the country to the standards of the most conservative communities. At the same time, the Internet complicates the only goal crusaders like Buchanan reasonably can expect to accomplish: not to eliminate the messages that offend them but to make them a little less visible.

"We Will Eliminate the Demand'

"By enforcing the drug paraphernalia laws" Buchanan tells me, "we will ... eliminate the demand for illegal substances by eliminating those products that are used to ingest and inhale illegal substances." Yet if the war on drugs seems futile, the war on drug paraphernalia seems doubly so. Even if bongs, vaporizers, and carburetors became more difficult to obtain, it's hard to believe the result would be fewer marijuana users. After all, there's no shortage of alternatives for pot smokers to choose from, whether dual-use products such as rolling papers and corncob pipes or equipment improvised from everyday materials such as aluminum foil, soda bottles, and apples (see "You Can Put Your Weed in There," page 34).

To get a sense of how realistic Buchanan's expectations are, consider Operation Pipe Dreams, the big paraphernalia crackdown she led in 2003. Together with Operation Headhunter, a companion investigation run by the U.S. attorney in Des Moines, it nabbed more than 50 people, including Chong, who was swept up because of his involvement with Chong Glass, a business started by his son that produced multicolored, hand-blown pipes. The results of these operations could generously be described as mixed.

At the February 2003 press conference where he announced the indictments, then-Attorney General Ashcroft said the government "has taken decisive steps to dismantle the illegal drug paraphernalia industry by attacking their physical, financial, and Internet infrastructures." John B. Brown, acting head of the Drug Enforcement Administration (DEA), made it sound as if the entire industry had been shut down: "These criminals operate a multimillion-dollar enterprise, selling their paraphernalia in head shops, distributing out of huge warehouses, and using the worldwide web as a worldwide paraphernalia market. With Operations Pipe Dreams and Headhunter, these criminals are out of business." John P. Walters, director of the Office of National Drug Control Policy, called the arrests "a devastating blow to the drug paraphernalia business."

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Six years after that press conference, the drug paraphernalia business seems to be doing pretty well. Ads for marijuana accessories in High Times, which dipped sharply right after the 2003 arrests, have rebounded, although the mix is noticeably different nowadays (fewer pipes and more vaporizers, which heat dried plant material to release the active ingredients rather than burning it). In Google searches for "bong," "vaporizer," and "chillum" (a funnel-shaped pipe), the top results are dominated by online head shops based in California, Canada, the U.K., and the Netherlands that also sell various other kinds of dry and wet pipes, screens, rolling papers, grinders, roach clips, scales, and stash containers.

Similar merchandise is available across the country from brick-and-mortar retailers, which occasionally are...