The Justice Department is investigating whether High Times magazine, the New York-based monthly, violated any drug laws in accepting advertising from a Dutch company that offers a catalogue of high-yield and "exotic" marijuana seeds, according to court records and department officials.
The investigation, which is being conducted by federal prosecutors in New Orleans, is a new escalation in the government's crackdown on commercial enterprises supporting the multi-billion-dollar marijuana trade, officials familiar with the case say.
But some civil liberties groups charge that the grand jury investigation also raises potentially serious constitutional issues. Drug Enforcement Administration agents recently showed up at High Times' offices in midtown Manhattan and delivered four grand jury subpoenas requesting all of the magazine's correspondence with the Dutch firm as well as the name, address and phone number of "every current and past" employee of the magazine, a copy of the subpoena states.
"This is the first instance that I know of where the war on drugs has been directed at a publishing organization ... where it has gone right into the newsroom," said Jane Curtley, executive director of the Reporters Committee for Freedom of the Press, a Washington-based advocacy group that specializes in First Amendment issues.
Founded in the early 1970s, High Times continues to promote the values of the drug-using counterculture of that era. It publishes articles touting the medical and environmental virtues of marijuana, attacking government drug policies and, more recently, ridiculing national drug control director William J. Bennett ("What Jerks! Bennett Blasts Pot While Aide Has Nicotine Fit," read one recent headline.)
The magazine, which claims a circulation of 250,000, also regularly publishes advertisements for drug paraphernalia, such as pipes, bongs and special horticultural equipment that could be used to grow marijuana indoors. Another regular feature is "Trans-High Market Quotations," a sort of stock index of the drug trade, listing current marijuana prices in select cities across the country. Those features have made the magazine a red flag to DEA, whose officials have described High Times as an open invitation to violate the drug laws.
After Editor Steven Hager and three other High Times officers were served the grand jury subpoenas in late May, the magazine received a follow-up letter from the U.S. attorney's office in New Orleans declaring High Times the target of the grand jury investigation.
The magazine's lawyers then moved to quash the subpoenas on First Amendment grounds -- a motion that was denied at a June 20 hearing before U.S. District Judge Adrian G. DuPlantier in New Orleans. At the same hearing, portions of which were closed to the public, Assistant U.S. Attorney Lawrence Benson identified a number of statutes that the magazine was being investigated for violating, including conspiracy to distribute and possess drugs and conducting a "continuing criminal enterprise," according to attorney Michael Kennedy, who has been retained by High Times to fight the case and who also is Ivana Trump's divorce lawyer.
"There is no freedom of the press in this country. ... We're living in a police state," charged Hager, 39, in a telephone interview. He called the investigation a "fishing expedition" designed to silence the magazine's journalism, particularly its investigations that have "uncovered" how petrochemical companies secretly plotted to ban marijuana in the 1930s because they feared the plant would also be used to produce hemp fibers that would compete with their synthetics.
Hager, a former New York Daily News reporter, also contended the probe was part of a broader pattern of harassment against peaceful marijuana smokers everywhere. "There are 50 million pot smokers in America ... and unless the government takes us all out and shoots us, we're not going to back down," he said. "We know the truth about marijuana. We'll die for this cause."
Benson, the federal prosecutor who is overseeing the probe, declined to comment last week, as did Dan Eramian, the chief Justice Department spokesman in Washington. But Eramian said the grand jury subpoenas against High Times were not covered by longstanding department guidelines sharply restricting subpoenas against news organizations. Those guidelines require approval from the attorney general before subpoenas can be served on any member of the news media.
No such approval was obtained from Attorney General Dick Thornburgh in this case, Eramian confirmed. The reason, he said, is that the High Times subpoenas were "demands for purely commercial or financial information unrelated to the news-gathering function" -- an exemption under the guidelines, Eramian said.
But some constitutional lawyers argue the line is not clear and may well have been further blurred by the government's demand for the identity of all past and present High Times employees. "I can't think of a case where the government has sought information of this sort," said Floyd Abrams, a prominent First Amendment lawyer whose clients include the New York Times. "It is true that advertisements for illegal activities are not protected by the First Amendment. ... But it's also true that government should take the greatest caution about coming too close to an intrusion on First Amendment rights."
The government's interest in High Times is nothing new. Investigations of the magazine were proposed "as long as six or seven years ago," according to one former high-ranking DEA official, but the agency always backed off because of Justice Department skittishness over potential freedom-of-the-press problems.
But over the past year, as eradication of domestic marijuana has taken on increased prominence within DEA, the agency has stepped up its attack. Last October, DEA launched "Operation Green Merchant," in which federal agents arrested 119 people in 46 states during raids against retail stores specializing in horticultural equipment used to grow marijuana. DEA officials later confirmed that the list of specialty stores raided was culled from advertisers in High Times as well as in Sinsemilla Tips, a competing Oregon-based journal published by marijuana activist Tom Alexander. (Alexander's indoor-gardening store, located in the same building as his magazine, was among those shut down by the raids.)
Now, court records show, DEA is focusing on High Times' relationship with one particular advertiser -- Schoenmakers, an Amsterdam-based firm that publishes the Seed Bank, an annual "prize-winning" marijuana seed catalogue.
One recent ad for the Seed Bank in High Times offers readers a selection of "top hybrids and pure strains from all over the world. Some recent discoveries include the amazing, exotic Haze ... and the heavy yielding, pungent Garlic Bud ... along with such classic favorites as Early Pearl, Skunk #1, Northern Lights, G-13 and Hash Plant."
The New Orleans Times Picayune, quoting unidentified sources, reported on June 30 that the prosecutors had identified suspects in New Orleans who had ordered seeds from the Seed Bank after reading about the catalogue in High Times. Under the government's apparent theory, that would make High Times a conspirator to distribution of the seeds, according to lawyer Kennedy. Kennedy noted that neither the seeds nor marijuana itself is illegal in Holland.
"The government is in the position of saying that the possession of a seed is a felony, which is absurd," said Kennedy. "But what's more absurd is that the running of an ad for a catalogue is a crime."