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.

Arnold contended the First Amendment protected his expressive rights “as a chemist,” and that the impermissibly vague law fails to make aromatherapists, photographers, mechanics and others whose occupations involve chemicals aware of when their behavior is illegal.

“Mr. Arnold and the citizens of Colorado are therefore entitled to ‘fair notice’ as to which chemicals, supplies, equipment and controlled substances this provision specifically refers to because without this information therein lies the trap!” he wrote.

The Colorado Attorney General’s Office argued Arnold had already appealed his conviction directly, and also unsuccessfully sought postconviction relief. Not only had Arnold filed his additional challenge years after his initial conviction, but the government pointed out that trial courts are generally required to reject claims that could have been raised in prior proceedings.

Even considering the merits of the challenge, wrote Senior Assistant Attorney General Kevin E. McReynolds, the law criminalizes possession of chemicals and equipment “with the intent to manufacture” narcotics, meaning there is no question about what conduct is prohibited.

Although Arnold insisted he was not attempting to overturn his conviction and instead wanted to prevent others from being wrongfully convicted, the Court of Appeals panel agreed with the government Arnold had no standing to attack the constitutionality of the law.

Jones, in the panel’s opinion, nevertheless addressed the free speech question Arnold raised. Expressive conduct, Jones wrote, means there is a particular message conveyed that is generally understood by those who view it.

“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,” he explained. “To hold otherwise would seem to permit literally anyone to assert a facial free speech challenge to any law criminalizing almost any conduct.”

The court also agreed the law clearly applies only if a person has the intent to manufacture drugs. The decision was designated as unpublished, meaning it will not set a precedent for future courts.

The case is Arnold v. Polis.