Imagine you're sitting on a bus or a train. You look up and, amid the ads for ambulance-chasing attorneys and laser-wielding dermatologists, notice a picture of two police officers. The text reads, "Police are too important…to waste on arresting people for marijuana when real criminals are on the loose."
For the time being, that scene remains imaginary. Change the Climate, a Massachusetts-based drug policy reform group, tried to buy space for the message on buses and trains in Boston and Washington, D.C., but the local transit authorities turned it down.
They also rejected two other ads. One features a mother who declares that "jail is a lot more dangerous than smoking pot"; the other shows a teenager who says, "Smoking pot is not cool, but we're not stupid, ya know. Marijuana is NOT cocaine or heroin."
Massachusetts Gov. Paul Cellucci recently urged Boston's transit authority to stand its ground, despite a First Amendment lawsuit filed by Change the Climate. "I want them to fight," Cellucci told the Boston Herald. "Why should a government entity be forced to put up a message that may be harmful to children?"
The short answer is that freedom of speech requires the government to tolerate all sorts of messages that may be wrongheaded, misleading, or dangerous. The issue is not whether Change the Climate is right about drug policy (I think it is) but who should decide whether it's right: the people or the government.
That question is especially important in areas such as drug policy where critics are vastly outnumbered by supporters of the status quo. But consider an issue on which Americans are much more evenly divided: abortion.
In 1996 Philadelphia's Southeastern Pennsylvania Transportation Authority took down ads sponsored by Christ's Bride Ministries that warned, "Women Who Choose Abortion Suffer More & Deadlier Breast Cancer." The move came after SEPTA received a copy of a letter from Philip Lee, an assistant secretary in the U.S. Department of Health and Human Services, that called the posters "unfortunately misleading" and "unduly alarming."
In this context, an abortion rights supporter might ask a question similar to Paul Cellucci's: Why should a government entity be forced to put up a message that may be harmful to women? Statistics show that childbirth is more dangerous than abortion, and surely SEPTA should have the authority to reject ads that could put women's lives at risk.
But the U.S. Court of Appeals for the 3rd Circuit didn't see it that way. The court noted that SEPTA had previously accepted ads dealing with controversial issues–including "pro-choice" abortion messages–and had thereby created a "designated public forum," which meant that its decision to pull an ad based on content would be subject to strict scrutiny.
Even if the advertising space in SEPTA's stations did not qualify as a public forum, its rejection of the anti-abortion ad would still have to be "reasonable," and the court found SEPTA had not met this test either. Legalese aside, the basic point in straightforward: Once a government agency decides to sell space for advocacy on social and political issues, it may not turn down advertisers because it disagrees with them.
"SEPTA acted as a censor," the court concluded, "limiting speech because it found it to be 'misleading.' " Last year the U.S. Supreme Court let the decision stand, and at least two other appeals courts have issued similar rulings.
But the people who vet transit ads still don't get it. This year the American Life League complained that TDI, the contractor that handles ads for New York's Metropolitan Transportation Authority, had nixed an ad featuring a photograph of an 8-week-old fetus that urged: "Please don't do it. She's your baby."
TDI was also involved in the Philadelphia case. Likewise, federal judges have repeatedly rebuked Boston's Massachusetts Bay Transportation Authority for turning down controversial ads, but the Change the Climate case shows the MBTA still hasn't learned its lesson. Now Cellucci is saying it shouldn't respect the First Amendment unless it's compelled to do so.
The officials involved in the case are making no pretense of fairness or tolerance. Although the MBTA shuts out critics of the war on drugs, it gladly runs ads from the Office of National Drug Control Policy and the Partnership for a Drug-Free America.
An MBTA spokesman told NPR, "You have to draw the line somewhere." The MBTA has conveniently drawn it between orthodoxy and dissent.