Freedom of expression is guaranteed by the US Constitution, but it has rarely been won without a struggle, especially if the opinions being expressed are unpopular with government authorities. From Wobbly agitators spouting class war rhetoric on soapboxes early in the 20th Century to the 1960s student Free Speech Movement and beyond, advocates of unapproved causes have always had to fight for their rights.
Marijuana activists in Florida and Massachusetts now find themselves part of that noble tradition.
In Florida, the Florida Cannabis Action Network (FCAN) has since 1989 sponsored an annual legalization festival known as Hempfest in the college town of Gainesville. City officials, however, disapproved of Hempfest's message and have consistently attempted to block the festival by burying it beneath a blizzard of restrictive permit requirements.
After five years of litigation in the federal courts, FCAN scored a resounding victory when the 11th Circuit Court of Appeals ruled that Gainesville's permit ordinances constituted an impermissible "prior restraint" on free speech.
FCAN filed suit against the city in 1995, after city officials denied two of three permits needed to hold the festival. The group received a temporary injunction forcing the city to allow Hempfest to take place that year. Gainesville amended its ordinances in hopes of meeting constitutional standards, but the 11th Circuit held they were still constitutionally deficient.
Even as the case wound through the courts, Gainesville officials continued to harass event organizers. In October 1999, they tried to require FCAN to get written approval from local merchants when it applied for a street-closing permit. After FCAN threatened to file suit again, the city granted the permit.
"We're really delighted with the ruling," FCAN president Kevin Aplin told DRCNet. "This is a major victory for free speech."
"This ruling applies not only to Florida, but throughout the 11th Circuit, which includes Georgia and Alabama as well," said Aplin. "It removes discretion from government officials so they can't censor events they don't like by denying permits."
And, said Aplin, "The ruling shifts the burden of reviewing permit denials from the citizen back to the government. Before, if officials denied or didn't respond to permit requests, the citizen had to find a lawyer, go to court and seek an injunction. Now, if the city wants to deny a permit, it will have to explain its reasons to a judge."
As matters now stand, Gainesville is without sound and street-closing ordinances. The city could appeal to the Supreme Court, but, as Aplin points out, "It was a unanimous opinion and a clear and convincing ruling from the appeals court."
More likely, the city will rewrite the ordinances to meet constitutional requirements. And FCAN will be looking over the city's shoulder. "They will rewrite and we will scrutinize," vowed Aplin.
The Gainesville case is by no means the only free speech fight in which FCAN is involved. "We've been to federal court against Miami, Orlando, Melbourne, Jacksonville, and Jacksonville Beach on the various obstacles they put in the way of free expression," said Aplin.
FCAN vice-president Scott Bledsoe has two Jacksonsville arrests for engaging in marijuana proselytizing, one outside Altel Stadium before a Jacksonville Jaguars football game and one at a Bush campaign event. The latter arrest came even after the Jacksonville Sheriff's Office signed a memorandum of understanding with FCAN attorneys acknowledging that FCAN had the right to engage in political speech on public property.
"We've sued Jacksonville twice," says Aplin. "Our attorneys are happy to take their money."
For Aplin, such tactics are business as usual. "We like to be the ACTUP of the drug reform movement," he told DRCNet. "We're out on the street informing citizens about things they may not know about."
"I applaud the policy groups for the way they put out the information, but our job is to get that information to the man on the street."
"It is then that we get resistance from bureaucrats and law enforcement," Aplin explained. "Then we go to court."
FCAN isn't the only drug reform organization going to court to protect freedom of expression. Two thousand miles to the north, Change the Climate (http://www.changetheclimate.org), a nonprofit organization seeking to promote discussion of marijuana law reform, has filed suit in US District Court in Boston against the Massachusetts Bay Transit Authority (MBTA) over its refusal to display the group's ads.
The lawsuit charges that MBTA rejected the ads because of their point of view, a violation of the First Amendment.
The series of ads, which may be viewed at the group's web site, include a teenager saying, "It's not cool to smoke marijuana, but we're not stupid, ya know. Marijuana is not heroin or cocaine. Tell us the truth..."
In another ad, a woman says, "I've got three great kids. I love them more than anything. I don't want them to smoke pot. But I know jail is a lot more dangerous than smoking pot."
The third ad shows two policemen in front of a US flag and says, "Police are too important... too valuable... too good... to waste on arresting people for marijuana when real criminals are on the loose."
MBTA spokesman Brian Pedro defended the agency, telling Boston newspapers it can refuse ads it deems unfit.
"We have the right to and will not accept advertising containing violent criminal content, firearms, or promotional material that is harmful to juveniles," said Pedro.
Joseph White, executive director of the group, and the man behind its innovative strategy, disagrees. "Anyone who sees our ads could not in all fairness say they're promoting the use of marijuana," he told DRCNet. "We're simply telling the truth."
MBTA's argument also fails to persuade Sarah Wunsch of the American Civil Liberties Union of Massachusetts, who is representing Change the Climate.
"The MBTA runs a lot of ads about drug policies from different government agencies, but decided they did not like the point of view in these ads," she told the Boston Herald.
"The MBTA is a government agency and is not allowed to discriminate on the point of view of the ads. The First Amendment prohibits that."
The MBTA, however, has a history of not understanding that concept. It has had to pay thousands of dollars in fees to groups it had unsuccessfully attempted to censor, including a 1994 case when AIDS groups sued over its refusal to place ads urging condom use.
For White, the agency's recidivist history is reason enough to bring out the long knives.
"On advice of our attorneys, we are seeking punitive damages against individual executives at MBTA," he told DRCNet. "They have to learn a hard lesson, which they have not learned in the three previous cases -- all of which cost the taxpayers money."
"This time, if they want to violate our rights, they'll have to pay out of their own pockets," he said.
White might want to add Massachusetts Governor Paul Cellucci to the list. According to the Boston Herald, Cellucci forbade MBTA from settling White's suit.
When some administration officials suggested MBTA settle, Cellucci "blew his stack," the paper reported.
"I'm not going to settle any case. I want them to fight," Cellucci told the Herald. "Why should a government entity be forced to put up a message that may be harmful to children? That's ridiculous."
"He is a prisoner of the war on marijuana," said White of Cellucci. "He cannot see any other options or solutions, just more arrests and more tax dollars spent on prosecuting marijuana charges."
White told DRCNet that the group's attorneys will proceed with depositions in the lawsuit if MBTA continues to refuse to settle.
But even if the agency settles, it will have to pay a price, said White. "We've asked for six months of free advertisements for a settlement. That would be just dandy."
Officials in Washington, DC, avoided a similar lawsuit after they relented on an initial refusal of the group's ads. White told DRCNet that some 560 ads will appear on DC buses and at subway stops in January -- just in time for the new president's inauguration.
Those ads, White said, will have a picture of a young person looking at the camera and asking, "Why do kids go to jail for doing what politicians did when they were young?"