US: Marijuana Ads Loses Justice Department Support

By Gary Fields, Staff Reporter
Source: Wall Street Journal

The Justice Department told Congress it won't defend a new law that withholds federal funds from transit agencies that run advertisements promoting the medical use or legalization of marijuana. The decision by the acting solicitor general effectively opens the way for transit authorities to display the ads without risking their share of the federal $7.2 billion pot for public transit.

The decision isn't expected to bring big ad dollars to transit agencies, but could offer a boost in election years when marijuana initiatives are on local ballots.

In a two-page letter to the top lawyers for the House and Senate, acting Solicitor General Paul Clement said he decided not to appeal a U.S. District Court ruling that allowed the ads in the Washington Metro system, saying the law violated the First Amendment. In his letter, Mr. Clement said he lacked a "viable argument" for an appeal.

The case stems from a rider attached to a 2004 appropriations bill by Rep. Ernest Istook Jr. (R., Okla.) that threatened to cut federal funding for transit authorities that accept ads critical of federal marijuana laws. After the law went into effect, the American Civil Liberties Union Drug Law Reform Project, Drug Policy Alliance, Marijuana Policy Project and Change the Climate Inc. tried to buy ad space from the Washington Metropolitan Area Transit Authority to promote legalizing marijuana.

The authority, which had accepted similar ads before the law was enacted, turned down the request fearing it would lose federal funds. The groups sued the Washington Metro and Transportation Department.

U.S. District Judge Paul Friedman in Washington sided with the groups, ruling that the law violated the First Amendment.

In a letter to Congress last month about the possibility of an appeal, Mr. Clement wrote "an argument could be made that the possibility that the transit authority could prohibit a broader swath of advertisements than Congress specified would be enough to justify the narrower condition's facial constitutionality." But, he said, doing so might have the larger effect of requiring "a ban on antidrug advertisements and perhaps other similar public-service announcements."

"I have therefore determined that the government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision holding the provision as currently drafted unconstitutional."

The immediate effect of the opinion is questionable. The Washington ad ran in area subway stops after Judge Friedman's ruling.

Two past solicitors general, Charles Fried and Seth Waxman, said it is rare for a solicitor general to refuse to defend a statute passed by Congress. Mr. Fried, who served under President Reagan, recalled making such a decision only twice while he was solicitor general from 1985 to 1989.

Mr. Clement's opinion also could serve as a warning to Congress that it can't assume the Justice Department will support the controversial riders that lawmakers have been adding to funding bills if those riders are challenged in court.

Congress's deadline to file an appeal is today. While the Senate or House could file an appeal using outside attorneys, legal experts say it would be exceptional for Congress to seek one without Justice Department backing. A spokeswoman for Mr. Istook said the congressman hadn't asked anyone to pursue an appeal.

Graham Boyd, director of the ACLU Drug Law Reform Project said he was surprised at the solicitor's opinion because he had battled Justice Department lawyers in two similar cases where "they fought to the bitter end." Steve Fox, director of government relations for the Marijuana Policy Project, which runs ads for ballot initiatives on marijuana, said the group doesn't have specific plans for ads. "But, it is comforting to know that we will not be prohibited from advertising wherever we choose to go," he said.

Source: Wall Street Journal (US)
Author: Gary Fields, Staff Reporter
Published: January 26, 2005
Copyright: 2005 Dow Jones & Company, Inc.
Contact: wsj.ltrs@wsj.com
Website: http://www.wsj.com/
Link to article: http://www.cannabisnews.com/news/thread20165.shtml

 

Press Release
Source: Common Dreams

Washington -- The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. The controversial statute was recently ruled unconstitutional by a federal district court. The Solicitor General Paul Clement stated in a letter to Congress that, “the government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision.” Today is Congress' last day to respond to the federal appeals court in the D.C. Circuit.

“The Justice Department finally met a law so unconstitutional that it could not find any way to defend it,” said Graham Boyd, Director of the ACLU Drug Law Reform Project. “Congress should stop trying to silence public discussion of the cruel and expensive failures of current marijuana laws.” As the Wall Street Journal reported today, “Mr. Clement's opinion also could serve as a warning to Congress that it can't assume the Justice Department will support the controversial riders that lawmakers have been adding to funding bills if those riders are challenged in court.” The Wall Street Journal added, “Two past solicitors general, Charles Fried and Seth Waxman, said it is rare for a solicitor general to refuse to defend a statute passed by Congress” and that “Mr. Fried, who served under President Reagan, recalled making such a decision only twice.”

The law at issue in ACLU et al., v. Norman Y. Mineta is Section 177 of the FY2004 federal spending bill, also known as the ‘Istook Amendment,' which threatens to cut off more than $3 billion in federal funding from local transit authorities nationwide that accept advertisements critical of current marijuana laws. Rep. Ernest Istook (R-OK) introduced this amendment to the spending bill last year and Congress re-included the same law in this year's federal budget. The ACLU, the Drug Policy Alliance, the Marijuana Policy Project, and Change the Climate, Inc. filed the lawsuit in February 2004 after the Washington Metropolitan Area Transit Authority rejected an advertisement they submitted that criticized marijuana laws.

In June 2004, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia ruled the ‘Istook Amendment' unconstitutional on First Amendment grounds, stating “there is a clear public interest in preventing the chilling of speech on the basis of viewpoint,” and that, “the government 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.”

The government initially appealed the district court's decision, but the Solicitor General recently notified Congress that the Justice Department would not pursue the appeal because there was, “well established Supreme Court precedent” that the law “amounted to viewpoint discrimination in violation of the First Amendment.” The Solicitor General's letter to Congress can be viewed online at: http://www.drugpolicy.org/docUploads/USDOJIstookLetter012605.pdf

“The government has resorted to silencing free speech because it knows it cannot win an honest debate about marijuana prohibition,” said Steve Fox, Director for Government Relations for the Marijuana Policy Project. “Such desperate attempts to prop up a failed policy show just how bankrupt a policy marijuana prohibition is.”

Following the district court's ruling, the plaintiffs displayed their paid advertisement in the D.C. Metro during the month of September, 2004. The ad shows a group of ordinary people standing behind prison bars under the headline, “Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans.” The advertisement can be viewed online at: http://www.drugpolicy.org/docUploads/transit_ad_04.pdf

“We're delighted that the Justice Department has refused to defend Congressman Istook's indefensible attack on free speech and drug policy reform,” said Bill Piper, Director of National Affairs for the Drug Policy Alliance. “It's a shame that he has caused the federal government to waste so much taxpayer money pursuing this futile issue to this point.”

Joe White, Executive Director of Change the Climate, Inc. added, “Almost 800,000 people were arrested for marijuana violations last year. We applaud the Justice Department for telling Congress to back off. Our drug laws are a failure, and Congress has gone to great lengths to hide this truth from the public.”

The same groups who sought to run the advertisement filed the lawsuit. The plaintiffs are represented by the Washington D.C. law firm Arnold & Porter LLP. The lawsuit names Norman Y. Mineta, U.S. Secretary of Transportation as the defendant.

With the dismissal of the government's appeal, the district court's injunction prohibiting the Department of Transportation from enforcing the Istook Amendment becomes final and permanent.

The Solicitor General's letter to Congress, the advertisement, legal documents and background materials are online at: http://www.aclu.org/drugpolicy/ -- http://www.changetheclimate.org/ -- http://www.drugpolicy.org/ and http://www.mpp.org/

Contact: American Civil Liberities Union
Tony Newman, DPA, 646-335-5384
Elizabeth Méndez Berry 646-335-2242

Source: Common Dreams (ME)
Published: January 26, 2005
Copyright: 2005 Common Dreams
Contact: editor@commondreams.org
Website: http://www.commondreams.org/
Link to article: http://www.cannabisnews.com/news/thread20164.shtml

 

By Jim McElhatton, The Washington Times
Source: Washington Times

Metro officials must accept advertising that promotes the legalization of marijuana now that the Justice Department has opted not to defend the transit agency's ban on such ads. Justice officials had until Wednesday to appeal a federal court decision that struck down a law recently passed in Congress stating that transit agencies would lose federal funding if they accepted ads advocating the legalization or medical use of such illicit drugs.

Metro has yet to receive pro-marijuana ads since the Justice Department's decision, but a spokesman said the agency would not reject such ads unless they "showcased profanity."

"The transit agency is not in the business of picking and choosing what can and cannot go up," Metro spokesman Steven Taubenkibel said.

The government "does not have a viable argument to advance in the statute's defense," acting Solicitor General Paul D. Clement said in a letter to Senate attorneys last month that explained his decision.

He said the law also could have banned transit agencies from posting ads with anti-drug messages and other public service announcements.

U.S. Rep. Ernest Istook, Oklahoma Republican, pushed for the law last year after Metro ran a series of ads by Change the Climate Inc., a Boston group that promotes the legalization of marijuana.

One ad touting marijuana legalization showed a young couple embracing, with the caption "Enjoy Better Sex!"

Mr. Istook had no comment Wednesday on the Justice Department's decision, a spokeswoman said.

D.C. Council member Jim Graham, who serves on the board of directors for Metro, said he agreed with the Justice Department's decision, though he did not care for the marijuana ads.

"I think that any decision that favors the First Amendment right to freedom of expression is a good one," said Mr. Graham, Ward 1 Democrat.

"Some of these ads are hard to swallow, but what we're talking about is freedom of expression. And sometimes we just have to gulp."

The American Civil Liberties Union (ACLU) sued the federal government last year when Metro rejected a Change the Climate ad with the headline "Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans."

Metro officials cited the new federal law when rejecting the ad, saying the cash-strapped agency could not risk losing $170 million in federal subsidies.

Joseph White, executive director for Change the Climate, said the group has not ruled out another round of pro-marijuana ads for the Metro system.

"I expect that we will be launching a campaign when we decide where that would be most effective," he said. "It's a little too early to say right now."

ACLU officials were surprised yesterday but lauded the Justice Department's decision.

"It's very unusual," said Graham Boyd, director of the group's drug law reform project. "I think it is a surprisingly frank admission that the First Amendment requires an evenhanded treatment."

Anti-drug advocates were disappointed by the decision not to defend the case.

"It's very distressing news that it appears we're not fighting back on this," said Joyce Nalepka, president of the District-based Drug-Free Kids.

"Washington, D.C., really needs to make a statement. There must be a way to stop these ads."

Source: Washington Times (DC)
Author: Jim McElhatton, The Washington Times
Published: January 27, 2005
Copyright: 2005 News World Communications, Inc.
Website: http://www.washtimes.com/
Contact: letters@washingtontimes.com
Link to article: http://www.cannabisnews.com/news/thread20170.shtml

 

By Boston Herald Editorial Staff
Source: Boston Herald

On rare occasions a lawyer makes a decision so reasonable it takes your breath away. The acting solicitor general of the United States, the government's chief appellate lawyer, has told Congress he will not appeal a district court's ruling that a law banning aid to transit systems that accept ads advocating the legalization of marijuana is an unconstitutional infringement of free speech. Ho hum, you say? Listen to the reason Paul Clement gave: ``The government does not have a viable argument to advance in the statute's defense.''

We need more lawyers like that - lawyers who refuse to mount no-hope appeals - both in government service and in private practice. Remember the Clinton administration's Justice Department, arguing - in vain - that Secret Service agents couldn't be questioned about a president's conduct?

In private practice there may not be much to hope for. Clients do, after all, insist on throwing away their money in hopeless causes. A lawyer is entitled to take it if he can file and argue an appeal with a straight face. Government work is different. Government lawyers, of course, have a duty to defend the interests of their clients, even when they disagree with the policy in question, but just look around.

Cases like the marijuana transit ads come up all the time. Clement's case arose in the Washington, D.C., transit system, which had accepted such ads before the law passed, but stopped for fear of losing federal transit aid. After the lower-court ruling, it started running the ads again.

The MBTA lost a similar case last year in the 1st U.S. Circuit Court of Appeals in Boston, a case in which the transit aid law did not figure. The court said the T had unlawfully discriminated against pro-marijuana ads.

We don't want legalized marijuana, but we also don't want any level of government deciding that some issue ads are permissible and some are not. That's why we have a Bill of Rights. Hats off to Clement for understanding it.

Source: Boston Herald (MA)
Published: Monday, January 31, 2005
Copyright: 2005 The Boston Herald, Inc.
Website: http://www.bostonherald.com/
Contact: letterstoeditor@bostonherald.com
Link to article: http://www.cannabisnews.com/news/thread20182.shtml