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Publishing & First Amendment Case Law
by Erowid
Nov 2, 2001
Generally speaking courts in the US have been extremely hesitant to allow police or governments to restrict speech on the basis of content. This does not mean that inciting immanent lawlessness or counselling others how to commit crimes are protected speech. Conspiracy to commit an act or aiding a criminal act or enterprise through speech or writing is not afforded protection under the First Amendment of the US Constitution.

Three of the main anti-speech decisions are Hit Man (Rice V Paladin, 4th circuit) & Barnett (United States v. Barnett , 9th Circuit 1982 667 F.2d 835.) and US v Progressive (United States v. Progressive, Inc., 467 F.Supp. 990 (W.D. Wis. 1979))).

The "Hit Man" (named after the title of the book) case involves a publisher and author who wrote a book with extremely explicit and grisly descriptions of how to murder people and get away with it. The publisher (Paladin) was hoping to hit a home run for the First Amendment and stipulated (agreed to say for the sake of a legal argument) that they had intended to provide information to be used by criminals. The court found that Paladin could be sued civilly for the wrongful death of someone killed using their book. The main finding of this and other caselaw is that aiding and abetting criminal action is not protected, even if this is done through a book.

The Barnett case involved a man who was selling PCP synthesis instructions through the mail. The case (United States v. Barnett , 9th Circuit 1982 667 F.2d 835) involved an appeals court not ruling that Barnett was protected absolutely by First Amendment protection and could be prosecuted on the basis of providing information with the intent of aiding a crime.

To the extent . . . that Barnett appears to contend that he is immune from search or prosecution because he uses the printed word in encouraging and counseling others in the commission of a crime, we hold expressly that the first amendment does not provide a defense as a matter of law to such conduct.
(from US v Barnett 1992)

The Progressive case involved a magazine publishing details of how to make an atomic bomb. Under a federal law prohibiting the publication of the 'secret' info, the judge ordered a preliminary injunction against printing. The judges self-described "regretful" decision was based on the national security interest that the secret of how to make an atomic bomb remain secret. Eventually the case became moot because the information was published elsewhere first and the 'secret' element of the ruling was no longer applicable. The government did not pursue cases against the other papers who published the info.

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Is What Erowid Does Illegal?

We are asked somewhat frequently whether publishing information about psychoactive plants and chemicals, some of which are illegal to possess in the United States without a license, is against the law. Most First Amendment court decisions are very pro-freedom. Courts are loathe to grant restrictions on publishing and speech, but there are well-recognized limitations. The grey area around the edges is harder to determine, but by the stricter definitions in Barnett and Hit Man, it becomes clear that what is not allowed is directly aiding and abetting crimes or inciting people to immanent lawlessness.

Erowid absolutely does not provide information for the purpose of inciting or helping others to commit crimes. It is against the standards and rules of Erowid to do so. Erowid does provide information on a range of topics, some of which are controversial and highly political. Erowid, however, provides the information as a service to everyone: law enforcement, policy makers, parents, concerned citizens, news writers, etc.

Of course there will always be people who choose to use otherwise lawful information or items for criminal purposes. Much as any store (such as a pharmacy) that sells products which could easily be criminally misused or libraries that contain information which could aid someone in breaking a law, we expect that people who read the information we publish will respect the laws of the country they are in.

While there are zealots who believe only government-approved individuals should have access to certain types of information, the only way to allow public oversight of laws and government regulations is to allow the general public access to information on which those regulations are based.

There are legitimate, law abiding uses for all of the information Erowid provides and none of the information on our site is intended to or developed in order to help any individual to break the law. It is an important global service, we believe, to having a long term, stable, reliably archive of information. An LSD synthesis, for instance, is useful in many legal ways: in chemistry education, licensed production of LSD for research, permanent historical record of man's knowledge, curiosity, a world-citeable archive to be used in political discussions, court cases, news stories, as background information for a variety of author types, and a host of other uses.

Other types of information are even more valuable to a broad range of individuals. It is our belief that the long term problems faced by the world related to psychoactive plants and chemicals can only be resolved with a fundamental shift in the available wealth of real-world information about the use and misuse of psychoactives. User experiences and a variety of documents detailing the exact methods by which substances are used in various contexts and by different people are important to help add real depth to the world's understanding of how to manage these complex and difficult substances. We fundamentally believe that the law of the US not only protects our work but actually supports it.

It is important to remember that although occasionally anti-speech forces attempt to pass laws which would restrict the right of citizens to challenge governmental policies and educational programs, democracy only functions over the long term through the constant balancing of disparate opinions. Speech-restriction laws are rarely upheld by the US courts and laws of that type die quickly.

"Democracy is sustained not by public trust but by public scepticism. Unless we are prepared to question, to expose, to challenge and to dissent, we conspire in the demise of the system for which our governments are supposed to be fighting. The true defenders of America are those who are now being told that they are anti-American."
George Monbiot

US Department of Justice Analysis of Distribution of Drug Information on the Internet (cache)