Colorado Court of Appeals: chemistry is not speech

Via the Denver Gazette: 

A Colorado Springs man who argued the state's law against manufacturing controlled substances is unconstitutional because it infringes on the protected "speech" of chemists ran into resistance last week from the Court of Appeals.

Because chemistry is not intended to convey a message, it is not legally speech, a three-judge appellate panel concluded.

"In sum, while 'Breaking Bad' is a constitutionally protected work of art, Walter White’s production of methamphetamine wasn’t," wrote Judge Jerry N. Jones in the July 14 opinion.

Kynan S. Arnold is serving a 48-year sentence after a jury convicted him in 2011 of multiple drug charges, including possessing chemicals or supplies to manufacture a controlled substance. Authorities who searched Arnold's apartment and storage unit found a methamphetamine laboratory and other items that indicated manufacturing activity.

The Court of Appeals upheld Arnold's convictions in 2014 and again in 2020. Arnold then attempted to challenge the constitutionality of the drug law under which he was convicted. He claimed the law swept up legal forms of speech through outlawing the possession of "one or more chemicals or supplies or equipment with intent to manufacture a controlled substance."

"It chills the First Amendment rights of anyone who might consider taking up chemistry as a hobby and those who may wish to purchase, possess and use glassware to experiment, create, invent, patent or replicate existing patents," Arnold, who represented himself from prison, wrote to the Court of Appeals.

The judge's opinion is pretty interesting, especially the conclusion (emphasis mine): 

We conclude that engaging in chemistry, as Arnold characterizes it, doesn’t convey an intent to present a particularized message and therefore isn’t speech. To hold otherwise would seem to permit literally anyone to assert a facial free speech challenge to any law criminalizing almost any conduct. Moreover, it’s clear that the statute only proscribes conduct related to otherwise illegal activities: the actor must have the “intent to manufacture a controlled substance.” §  18-18-405(1)(a). 

In sum, while “Breaking Bad” is a constitutionally protected work of art, Walter White’s production of methamphetamine wasn’t.  

I guess I never thought that doing chemistry was an act of speech, but now we have some legal precedent. (If you're making thiophenols, aren't you definitely presenting a particularized message?)