May 2, 2004 - The Chicago Tribune (IL) A Quiet New Tactic In The War On Drugs By Steve Chapman

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For decades, supporters of the war on drugs have been losing the debate about the policy, even as they continue to lock up hordes of harmless offenders. But prohibitionists have a new tactic to help them get the best of the argument: Don't let the other side speak.

One day last year, Ernest Istook noticed an ad on the Washington Metro transit system with an unusual message: "Enjoy better sex! Legalize and tax marijuana." Most people who ride the bus or the subway manage to absorb all sorts of little surprises on their daily commute, but not Istook. He wrote a letter to the local transit agency to say it had "exercised the poorest possible judgment" in running the ad at "a time when the nation and the Washington, D.C., area in particular suffer from chronic substance abuse."

Normally a complaint like that would have no effect. Istook, however, is not only a Republican member of the House of Representatives from Oklahoma but chairman of the Transportation and Treasury Appropriations Subcommittee.

He placed a provision in a funding bill reducing federal funds for Metro by $92,500, as punishment for the ad, and denying money to any transit system that accepts ads advocating "the legalization or medical use" of marijuana or other illicit drugs. And it passed. Transit agencies across the country now have to choose between tolerating open debate and getting a total of $3.1 billion in federal funds.

So your local bus or subway system is free to run all sorts of ads and public service announcements. It is free to post lurid signs warning of the evils of smoking pot or snorting cocaine. But if it gets a nickel from the federal government, it may not allow any message raising doubts about the wisdom of the drug war. This is the Bill O'Reilly approach to policy disputes: Shut up!

Already the policy is having an effect. The group that ran the original ad, which calls itself Change the Climate, recently tried to buy space on Washington buses for an ad with the caption: "Marijuana laws waste billions of taxpayer dollars to lock up non-violent Americans." But even simple statements of fact run afoul of the censor's decree. Metro refused, saying it couldn't afford to risk the loss of $170 million in federal money.

The transit system does, however, display messages by the Partnership for a Drug-Free America urging parents to "set the rules and expect your kid to live drug free," as well as ads dealing with issues like abortion, the Iraq war and the alleged failures of the U.S. Department of Education.

Upon being rebuffed, Change the Climate filed a lawsuit, supported by the American Civil Liberties Union, arguing that the ban violates the 1st Amendment guarantee of freedom of expression. Wednesday, a federal judge in Washington hearing the case got to consider a variety of preposterous rationalizations for the law.

One is that the government is not obligated to subsidize unwholesome messages. Congress, the Justice Department argued, "has an undeniable interest in ensuring that no federal funds are used, directly or indirectly, to facilitate activity that Congress does not wish to promote." But in this case, the ad would not have cost the government money--Metro would have made $91,875 from renting the space.

The government lawyer also insisted that Congress had good reason to ban such ads because they "might encourage the use of drugs, which is illegal at this time." But the ad didn't say people should do something illegal. In fact, by showing a picture of people behind bars while pointing out that "hundreds of thousands of citizens have already been imprisoned" for breaking marijuana laws, the ad might even deter violators.

The real point of the ad was to change the law. To Ernest Istook and U.S. Atty. Gen. John Ashcroft, though, any suggestion that a law be changed amounts to incitement to violate it. In their addled version of democracy, you can advocate the enactment of a ban but not its repeal.

In the case of our drug laws, that sort of rule might be prudent, because their total failure makes them vulnerable to criticism. Such as the point made by Change the Climate, which says it's unfair to imprison people for using a largely benign drug that one of every three Americans has tried.

To silence critics is an implicit concession by the government that the drug war is impossible to defend. Alas, you can't win a debate by silencing the other side, but you can lose one.