June 3, 2004 - The San Francisco Chronicle (CA) Ads in Favor of Legalizing Drugs OK'd Judge Strikes Down Ban as Breach of Free Speech by Bob Egelko, Chronicle Staff Writer

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A federal law cutting off funds to any public transit agency that runs ads calling for legalization or medical use of an illegal drug was declared unconstitutional Wednesday by a federal judge.

U.S. District Judge Paul Friedman of Washington, D.C., said the amendment attached to a $3.1 billion transportation measure, signed in January by President Bush, violated freedom of speech by banning messages based on their viewpoint.

"The government has articulated no legitimate state interest in the suppression of this particular speech other than the fact that it disapproves of the message, an illegitimate and constitutionally impermissible reason,'' Friedman said. He prohibited the government from enforcing the funding restriction.

The ruling in a suit by civil liberties and medical marijuana advocates could affect billboards and bus shelters in the Bay Area. The transit bill included $100 million for the already-completed BART airport extension and $9 million for the Municipal Railway's Third Street light-rail project in San Francisco, money those transit systems would have forfeited under the amendment if they accepted a forbidden ad.

Muni spokeswoman Maggie Lynch said her agency hasn't been asked to carry any such ads but has been advised by city lawyers that its advertising policies must abide by constitutional First Amendment standards. "We certainly would not take an ad that would interfere with our federal funding,'' she added.

Bruce Mirken, spokesman for the Marijuana Policy Project, noted that Muni's bus shelters now carry ads, sponsored by the White House Office of National Drug Control Policy, suggesting that youthful marijuana use leads to a life as a derelict.

"If this amendment stood, we would be barred from putting ads in that same forum to counter that message and to engage in a political debate about the wisdom of the marijuana laws,'' Mirken said.

BART spokesman Mike Healy was unavailable for comment Wednesday, but denounced the federal ad restrictions as "blackmail of the transit industry'' when the suit was filed in February.

Officials in the White House drug office were also unavailable to speak about the ruling, which could be appealed.

The amendment was sponsored by Rep. Ernest Istook, R-Okla., who took offense at pro-marijuana ads in the D.C. subway system. One ad was headlined, "Enjoy better sex!'' and called for legalizing and taxing marijuana.

June 3, 2004 - The Washington Post (DC)

Judge Voids Law Against Drug Ads on Metro

Pro-Marijuana Groups Hail Free Speech Ruling

by Carol D. Leonnig, Washington Post Staff Writer

A federal law aimed at keeping advertisements critical of national drug policy out of Metro stations and bus shelters illegally chills free speech and cannot stand, a federal judge ruled yesterday.

U.S. District Judge Paul L. Friedman barred the U.S. government from enforcing a law passed by Congress this year that calls for denying federal transportation money to any transit system that accepts ads promoting the legalization of drugs.

Drug advocacy groups that sponsored the ads applauded the decision, which came in a lawsuit they filed against Congress and Metro. They predicted that Metro officials will soon accept their ads in stations and shelters.

"I'm just absolutely delighted that free speech is alive and well in this country and that we can finally have a debate about reforming marijuana laws instead of being force-fed the government's one-sided views on marijuana," said Joseph White, executive director of Change the Climate, one of the plaintiffs in the suit.

Metro spokesman Steven Taubenkibel declined to comment, saying the decision was under review. U.S. Justice Department officials said that they were analyzing the ruling and that it was too early to say whether it would be appealed.

The law at the center of the dispute found its origins in the ire of Rep. Ernest J. Istook Jr. (R-Okla.), who said he was furious last fall at seeing marijuana legalization ads in Metro shelters and stations. One ad pictured a scantily clad couple in an embrace, with the caption: "Enjoy better sex! Legalize and Tax Marijuana."

Istook introduced legislation to stop the ads by attaching his penalty measure to the 2004 appropriations bill, which President Bush signed into law in January. The measure threatens 53 transit authorities with the possible loss of $3.1 billion a year if they accept such ads.

Change the Climate joined with the Drug Policy Alliance, the Marijuana Policy Project and the American Civil Liberties Union to file the lawsuit, claiming that the legislation amounted to unconstitutional censorship. The case was filed after Metro rejected ads in February.

In an April hearing before Friedman, the Justice Department argued that federally funded mass transit systems are not required to provide a canvas for political groups to express their views. Department lawyers also maintained that some of the ads encouraged illegal behavior.

In his ruling, Friedman declared that the case was not about drugs or crime, but about free speech. He called the law a clear case of "viewpoint discrimination" and noted that Metro displayed the Office of National Drug Control Policy's anti-drug ads when it refused the other ads.

"Congress . . . cannot prohibit advertisements supporting legalization of a controlled substance while permitting those that support tougher drug sentences," the judge said. He called the law "an unconstitutional exercise of Congress' broad spending power."

Art Spitzer, the litigation chief for the ACLU in Washington, said it will be difficult for Congress or Metro to challenge the ruling. "While reasonable people may disagree about drug policy, clearly the Constitution doesn't allow Congress to try to censor that debate," he said.

But Istook indicated that the case was far from over.

"I'm confident that ultimately the courts will agree with the long-standing principle that Congress is free to decide what we will or will not fund," Istook said. "We provide major funding to combat drug use, and tax dollars should not be used to subsidize contrary messages."

© 2004 The Washington Post Company

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