Three drug policy reform organizations and the ACLU filed suit Wednesday against the Washington Metropolitan Area Transit Authority (WMATA) after it refused last week to run ads at subways and bus stops advocating drug law reform. The lawsuit, filed by Change the Climate (http://www.changetheclimate.org), the Drug Policy Alliance (http://www.drugpolicy.org), the Marijuana Policy Project (http://www.mpp.org) and the ACLU's Drug Policy Litigation Project (http://www.aclu.org/DrugPolicy/) claims that WMATA's refusal to display the ads is an unconstitutional abridgement of free speech rights.
But while WMATA is the named defendant, the suit's real target is a new law passed last month as part of a massive omnibus federal spending bill. Sponsored by Rep. Don Istook (R-OK), who took great umbrage at an earlier Change the Climate WMATA ad linking marijuana and sex, the law cuts off up to $3.1 billion in federal funds to transit agencies if they display public service ads advocating changing the nation's drug laws (http://stopthedrugwar.org/chronicle/314/istook.shtml).
But the ad rejected last week is different. Featuring a photo of people locked up behind bars, the ad runs text across the top saying: "Marijuana Laws Waste Billions of Taxpayer Dollars to Lock-Up Non-Violent Americans." Unlike Change the Climate's controversial ads last fall, there is no linking of sex and marijuana and it is difficult to see how anyone could claim it is encouraging drug use or the commission of crimes. And unlike the earlier ads, which were placed as part of public service announcement programs, the ad rejected last week was a paid ad.
"Rep. Istook's backdoor amendment proves that the Congress is willing to violate the Constitution in order to hide from citizens the most basic facts about the impact of our current drug laws," said Change the Climate head Joe White. "Government censorship to quell criticism of its own policies should not be tolerated in the United States. If politicians really want to reduce marijuana use by young people they would regulate and control it like alcohol and tobacco, instead of making it easily available on the mean streets of America," he said.
"We took a little heat for running that 'enjoy better sex/tax and legalize marijuana' ad," White told DRCNet, "but our strategy worked because we wanted to lure the government into making a bad decision that would allow us to communicate our message about the need for reforming the marijuana laws. That ad was our Trojan horse. It provoked the government into showing its true colors --for censorship and for a one-dimensional approach to marijuana issues."
"We are pleased to be part of this effort," said Steve Fox, MPP director of governmental relations. "We had planned to sue on our own, but everyone was thinking along the same lines," he told DRCNet. "Even before the provision became law, we had a letter delivered to Rep. Istook's office and copied to all members of the House and Senate appropriations committees telling them that they should take the provision out and warning them if they didn't we would sue and get good publicity and win in court. It was a wrongheaded provision from the start, but it's in their court now, and we're going to get rid of it."
The ACLU pronounced itself confident of victory. "We are confident that the law is on our side because our ad is promoting political change, not illegal activities or drug use," said Anjuli Verma of the Drug Policy Litigation Project. "That is political speech, and political speech is protected by the First Amendment," she told DRCNet. "Unlike the earlier Change the Climate ads, which were public service announcements, we are paying for these ads. We are a group of private citizens who believe the drug laws need to be changed."
Unlike the controversy over CBS's refusal to air ads critical of President Bush during the Superbowl, said Verma, this case involves public agencies funded by the federal government. "CBS is a private entity and had the right to refuse the MoveOn ads, but transit authorities are an arm of the government and they have to be content neutral."
Congress left WMATA between a rock and a hard place, spokeswoman Lisa Farbstein told the Associated Press. The transit agency could have lost at least $85 million in federal aid if it accepted the ad, she said. "Given our critical dependency on continued federal funding, we have no choice but to follow the law that Congress passed," she said. "To do otherwise would be a disservice to our customers and the region's taxpayers."
WMATA is the first transit agency to be sued over the censorship law, but it may not be the last, and San Francisco and New York could be next on the list. "Every transit authority in the country is subject to losing funds if it displays such ads," said Verma. "They have a real dilemma. I think they feel like they're being blackmailed by the federal government: 'If you want our money you have to engage in unconstitutional censorship of free speech.'"
"We're waiting to see the response from the court in Washington, DC, both in terms of the decision and the time it takes to make the decision before committing to launching campaigns in other cities, particularly those that have huge amounts of federal transit dollars waiting for them," said Change the Climate's White. "San Francisco is a possibility, and New York is a huge market. Similarly, we might run a campaign in San Jose where we could better reach our target audience," he said, also mentioning Chicago as a potential target.