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Imperialist Attacks on Freedom of Speech


The US House Judiciary Committee passed a bill earlier this month that — should it become law — could put me in jail for a joke I made years ago.

Back when I still had hair on my head, some friends and I loved Wednesday night at the Deer Park, a bar and restaurant in Newark, Delaware. Wednesday was Nacho Night, with half-priced nachos and Mexican beer. We were the unofficial nacho committee for local libertarians.

While grousing over the stupidity of the various forms of prohibition and victimless crimes, I realized that Mark, Brian, and I should fly to Amsterdam. Once at the airport there, my beer-soaked brain decided, the three of us should link arms and skip through the terminal as if the floor was made of yellow brick. But instead of singing about looking for some wizard, we would chant, “Hookers and pot; hookers and pot. We’re gonna get us some hookers and pot.”

It was pretty funny at the time. At least we thought so. Maybe you just had to be there.

Under this new bill, however, such a joke, would be a crime despite the fact that these activities are not criminal in Amsterdam, (unless skipping carries jail time there). They are illegal here in the land of the free, however, where people such as the chairman of the House Judiciary Committee, Rep. Lamar Smith (R-Texas), like to ignore the First Amendment and common sense.

H.R. 313 is the Drug Trafficking Safe Harbor Elimination Act of 2011. According to Radley Balko’s article in the Huffington Post, H.R. 313 would make it a federal crime to “discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act — even if the planned activities are legal in the countries where they’re carried out.” The basic charge would be conspiracy.

In developing the story, Balko spoke with Bill Piper, director of national affairs for the Drug Policy Alliance.

According to Piper, “Under this bill, if a young couple plans a wedding in Amsterdam, and as part of the wedding, they plan to buy the bridal party some marijuana, they would be subject to prosecution. The strange thing is that the purchase of and smoking the marijuana while you’re there wouldn’t be illegal. But this law would make planning the wedding from the U.S. a federal crime.”

H.R. 313 is another example of the constant and pervasive government creep of intrusion into the everyday lives of people, trespassing on our liberties. Let’s not blame just the Republicans for such a bill. The Senate version, S. 1672, is sponsored by North Dakota Democrat Kent Conrad.

One of the bill’s opponents, civil-libertarian attorney Harvey Silverglate, calls H.R. 313 “an abomination.”

First, there’s no intuitive reason for an American to think that planning an activity that’s perfectly legal in another country would have any effect on America. So we’re getting further away from the common law tradition that laws should be intuitive, and should include a mens rea component. Second, this is just an act of shameless cultural and legal imperialism. It’s just outrageous.

Nothing good can come of this law. It goes beyond limiting attempts at humor. It will create more enemies for the United States. As Silverglate said, “I don’t see any interest other than to a desire to impose our moral and cultural preferences on the rest of the world.”

Just as a fence helps prevent trespass onto another’s property, the Constitution was to have been a fence between the people and the government to prevent government encroachment into the rights and everyday affairs of a free people. Yet it seems the Constitution itself needs a fence to protect it from government encroachment as well.

A fence around the Constitution could take several forms, but one that would really tick off politicians is a reading test. There would only be one question: What part of “Congress shall make no law” don’t you understand?

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    Rich Schwartzman is managing editor at Chadds Ford Live in Chadds Ford, Pennsylvania.