Naked City

Four drug-policy reform advocacy groups on Feb. 18 filed suit in federal court in Washington, D.C., against the federal government, Transportation Secretary Norman Mineta, and the Washington Metropolitan Area Transit Authority, claiming that an amendment to a recently enacted federal appropriations bill violates constitutionally protected free speech.

At issue is an amendment to the Consolidated Appropriations Act (HR 2673) offered by Rep. Ernest Istook, R-Okla., which forbids local transit authorities from accepting and displaying advertisements that advocate for marijuana (and other drug) policy reform on buses, trains, or at depots or shelters. Under the Istook amendment, failure to comply with the law results in the loss of federal funding, which most transit agencies (including Austin's Capital Metro) receive; Bush signed the bill into law in late January.

Even before its passage, drug reform advocates decried the amendment as an unconstitutional restriction on protected speech, and threatened to sue unless it was removed from the bill. But that plea, spearheaded by the Drug Policy Alliance, fell on deaf – and punitive – ears, according to the report of the House-Senate conference committee considering the Istook amendment. "[T]he conferees note with displeasure that public service advertising space in [Washington Metro] rail stations and buses has been used to advocate changing the nation's laws regarding marijuana usage," the conferees wrote of a November ad produced by the parent-led advocacy group Change the Climate. "WMATA has provided $46,250 worth of space to these types of ads; therefore, as a warning to other transit agencies, the conferees have deleted funding totaling $92,500 from projects and activities for WMATA in this bill."

So, unsurprisingly, on Feb. 5, the DPA and its partners Change the Climate, the Marijuana Policy Project, and the ACLU sought to buy space for a new ad, and WMATA rejected their request. On Feb. 18, the four groups sued. The Istook amendment "impermissibly" imposes content and viewpoint restrictions of public speech, the lawsuit charges, and its imposition of funding conditions on transit authorities oversteps Congress' spending power. "Enforcement ... would violate the constitutional rights of plaintiffs, their members, and members of the public," wrote attorney Hadrian Katz, and could force federal transit grantees "to forgo a substantial government benefit to which [they] would otherwise be entitled." The drug reformers ask that a federal judge declare the amendment unconstitutional, enjoin the government from enforcing it and the WMATA from rejecting the ads, and order the transit authority to accept the ad "for the next available time."

"There is, of course, a silver lining to the Istook amendment," DPA Executive Director Ethan Nadelmann said while announcing the suit at a National Press Club luncheon. "It's outrageous acts like this that often prove most effective in sensitizing Americans to the excesses of the war on drugs. Substantial reform of our nation's drug policies ... is inevitable, no matter what drug war extremists say. But we think ... Istook's crass proposal will likely accelerate the pace of reform. For this we thank him."

To see the lawsuit and a copy of the rejected ad, go to www.drugpolicy.org.