Federal Court Slaps Down Congressional Effort to Censor Drug Reform Mass Transit Ads 6/4/04

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A federal judge Wednesday ruled that a federal law prohibiting the display of paid advertisements advocating marijuana law reform on municipal buses and transit systems receiving federal funding is unconstitutional. Passed by Congress as a section of this year’s federal spending bill at the urging of Rep. Ernest Istook (R-OK) and known as the "Istook Amendment," the law was provoked by a marijuana reform advertising display on Washington, DC metro facilities. Arranged by the Massachusetts-based marijuana reform group Change the Climate (http://www.changetheclimate.org), the ads caused Rep. Istook such distemper that he crafted legislation jerking federal funds from any transit authority that allowed such paid messages to be posted. In all, transit authorities across the country faced the loss of more than $3 billion if they ran paid political ads advocating reform of the marijuana laws.

Change The Climate's
controversial subway ad
Change the Climate had run earlier ad campaigns in Washington, but the one that moved the Oklahoma conservative to act, but the ad that drove him crazy was controversial even within drug reform circles. It featured a man holding a woman in his arms above the words "Enjoy Better Sex: Legalize and Regulate Marijuana." While Istook remained blissfully unaware (or at least quiet about) earlier Change the Climate ads, the sex-drugs nexus appeared too much for him to handle.

But US District Court Judge Paul Friedman ruled that Istook's law violates the First Amendment by infringing on the free speech rights of Change the Climate. "Just as Congress could not permit advertisements calling for the recall of a sitting mayor or governor while prohibiting advertisements supporting retention, it cannot prohibit advertisements supporting legalization of a controlled substance while permitting those that support tougher drug sentences," wrote Friedman. "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."

"I'm delighted with the ruling," said Joseph White, the Massachusetts-based businessman who founded Change the Climate. "Now, we can continue to advertise our message about marijuana reform on transit systems and billboards, and now we can do that in every transit system in the country. Before the ruling, we were barred from presenting an alternative point of view to the government's position," he told DRCNet.

The decision came in a lawsuit filed by Change the Climate, the Marijuana Policy Project, the American Civil Liberties Union and the Drug Policy Alliance after the Washington Metropolitan Area Transit Authority (WMATA), citing fears of losing federal funding, refused to allow Change the Climate to place more ads. The lawsuit targeted WMATA for refusing the ads, and the federal Department of Transportation, which would withhold funds from offending transit agencies.

The suit was argued by Graham Boyd, director of the ACLU's Drug Policy Litigation Project. "The court ruled that Americans have a right to hear the message that marijuana prohibition has been a cruel and expensive failure," Boyd said in a statement after the ruling. "The constitution protects these messages from the type of viewpoint-based discrimination attempted by the federal government."

Change the Climate is already plotting new campaigns, White said. "We're in discussions right now about how to approach the next six months. There is some discussion about how to advertise at the Democratic and Republican conventions, but that isn't entirely clear because some of our funders are concerned we would raise the marijuana issue and hurt Kerry's chances. They feel we would be better off with Kerry than with Bush."

Congressional conservatives walked into a trap, said White. "Change the Climate decided to place a Trojan horse right outside Congress in the hope that those self-righteous, moralistic conservatives would take the bait and show their true colors. And indeed, the anti-reform members of Congress took it hook, line, and sinker, and provided us with a great opportunity to educate Americans about the folly, futility, and expense associated with the war against marijuana," he said.

"This actually worked out quite well," White continued. "We devised a strategy that allowed us to include all these other groups, we ended up with a great coalition effort, and I have to give everyone credit who was involved. I also am grateful for all the contributions that have come in just since the ruling was announced. This is a great victory not only for free speech but for marijuana reform."

And Boston, where Change the Climate has a similar lawsuit pending against the local transit authority, is next, said White. "I can't help but believe that today's decision will put pressure on the court to rule in our favor," he said.

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Issue #340, 6/4/04 Editorial: Backwards Again | Federal Court Slaps Down Congressional Effort to Censor Drug Reform Mass Transit Ads | Jail and Prison Population at an All-Time High -- Three Decades of Unbroken Increases | New York: Edging Closer to Rockefeller Drug Law Reform, Sort Of | DRCNet Interview: Arnold Trebach, Grand Old Man of American Drug Reform | Drug Reformers Remember Sam Dash | ALERT: Medical Marijuana Summer | Newsbrief: Wisconsin Defense Attorneys Challenge Drugged Driving Law | Newsbrief: Libertarian Party Chooses Dark Horse Badnarik for Presidential Nomination | Newsbrief: This Week's Corrupt Cops Story | Newsbrief: California Assembly Passes Bill to Let Some Drug Felons Receive Food Stamps | Newsbrief: Texas Medical Association, Canadian AIDS Society Give Nod to Medical Marijuana | This Week in History | The Reformer's Calendar

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