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Limiting Liability while Discussing Psychoactives
by Earth & Fire Erowid
Nov 2003
Citation:   Erowid E, Erowid F. "Limiting Liability while Discussing Psychoactives". Erowid Extracts. Nov 2003;5:6-7.
The complex and sensitive nature of our field of study not only presents thorny ethical issues, but also very real considerations concerning potential legal, social, and professional sanctions. Erowid work demands we take great care when answering questions and discussing topics related to potential illegal activities.

This is especially true given the many people who work on the Erowid site, as one person's careless actions could endanger others. Could we be sued if someone is hurt after taking a psychoactive they read about on Erowid? Could we be charged with conspiracy for providing information about how psilocybin-containing mushrooms are grown?

Unfortunately, there is no simple answer. Civil liability (individuals or companies suing each other) is a wide open field of law where there are few absolute rules. Criminal liability is a little easier to address and there are some very clear rules we follow to avoid breaking any laws.

Civil Liability
The First Amendment in the United States provides substantial, meaningful protections against both civil and criminal liability. Unfortunately, because a great deal of civil liability is negotiated outside courts (often by insurance companies and law firms) and because civil action in the U.S. can be undertaken with very few requirements, it is hard to summarize the issues involved. All of the guidelines for avoiding criminal liability also help to reduce risk of civil problems.

Criminal Liability
The primary concern most people have is whether providing information or answering questions could be illegal. Some concerns have arisen out of the recent case of Psilocybe Fanaticus (PF), a company that sold Psilocybe mushroom spores over the internet. The company's owner was charged with conspiracy to manufacture psilocin (an active ingredient in Psilocybe mushrooms and a Schedule I substance in the United States). One of the reasons people have been concerned about this case is that a major element in the conspiracy charge is the set of specific growing instructions PF included with the spores they sold.

Key Points
  1. Avoid discussing current possession or future, specific illegal acts.
  2. Do not provide recommendations or suggestions, simply provide generic descriptions of factual data.
  3. Refuse clearly when asked directly for information that would assist a crime.
  4. Do not provide specific information or answers to questions if there is any suggestion that they might be used in the commission of a crime.
The PF case has not yet been resolved, but it is important to point out the distinction between pure speech and product sales. If PF had merely told people how to grow Psilocybes, they would likely have been ignored by law enforcement. While it is certainly possible to be guilty of conspiracy or aiding and abetting a felony through communication alone, there are some fairly bright lines that one can avoid crossing.

Talking About Illegal Acts
The primary thing people should know to avoid is discussing future, specific illegal acts or current possession of controlled substances. Admitting publicly to having smoked cannabis in the past is almost certainly not going to result in prosecution, but talking about intending to smoke cannabis after dinner could. A credible statement about either current possession of an illegal substance or about specific future illegal acts could be grounds for a valid search warrant.

Aiding, Abetting and Conspiracy
Not only can talking about future specific acts of your own get you in trouble, but so can talking with someone else about their plans to break the law. Knowingly providing information to help someone in the commission of a crime can be prosecuted as aiding and abetting a crime or even conspiracy. It can be illegal to provide information to an individual whom you know intends to break the law, even if they do not actually commit the crime.

What is NOT considered conspiracy is providing the same piece of information for general use by the public, even if an individual ends up using the information to break the law. The definition of conspiracy requires that all involved parties knowingly or intentionally agree to assist in the commission or planning of a specific crime.

For instance, consider the following question:
"I have some Psilocybe mushroom spores and have been having trouble getting the fruit to grow well. Can you tell me what I can do to reduce contamination?"
Answering this question could be considered conspiracy to manufacture psilocybin or psilocin. On the other hand, answering the question:
"Can you tell me what common techniques people use for reducing contamination when cultivating Psilocybe mushrooms?"
would not be conspiracy as long as there is no reason to believe the individual intends to break the law using the information provided.

Assuming the person asking does not have a license to grow Psilocybe mushrooms--not always a correct assumption, but a prudent one--the first question implies that the information might be used to engage in a specific future illegal act. The second question in no way implies an intent to use the information to break a law.

If someone asks a question and sounds like they might use your response in the commission of a crime, tell them you can't or won't answer the question. Redirect the conversation to a new topic or end it entirely.

Providing Information
Although, by their very nature, libraries are open to everyone, there are those who would like to restrict access to information to people they approve of.

Erowid is founded on the belief that everyone must have access to the same information in order for there to be shared trust and responsible choices. Knowledge of psychoactives and their use is of interest to researchers, physicians, anthropologists, historians, reporters, lawyers, teachers, students, politicians, as well as the average person who lives in a world surrounded by these potent substances.

Because we provide information to the public, intended for no specific individual, and for no specific purpose, our situation is relatively clear. If we were providing information for the purpose of helping people break controlled substance laws, it would substantially increase our risk of civil or criminal problems, but we have no intention of assisting anyone in breaking the law or encouraging anyone to use illegal psychoactives.

It's clear that people will continue to use illegal substances whether they have access to information or not. Hundreds of millions of people in the United States alone have used an illegal plant or chemical. Reliable information about these substances needs to be available to the public and there is little question that this type of publishing is well within both the spirit and the letter of the law. While other rights outlined in the U.S. Constitution have degraded substantially, the First Amendment still stands as a powerful protection of the right to discuss sensitive topics without the fear of prosecution.